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ADDRESSES  ON 
INTERNATIONAL  SUBJECTS 


BY 

ELIHU  ROOT 


COLLECTED  AND  EDITED  BT 

ROBERT  BACON 

AND 

JAMES  BROWN  SCOTT 


CAMBRIDGE 
HARVARD  UNIVERSITY  PRESS 

LONDON:   HUMPHREY  MILFORD 
OxroBD  Univebsitt  Pbkss 

1916 


ilt* 


COPTHIGHT,  1916 
HABVABD  UNIYEBSITT  PRESS 


CONTENTS 

PACHB 

Introductory  Note vii 

The  Need  of  Popular  Understanding   of   Interna- 
tional Law 3 

An  Article  contributed  to  the  first  issue  of  the  American 
Joumcd  of  International  Law,  1907. 

The  Real  Questions  under  the  Japanese  Treaty  and 

the  San  Francisco  School  Board  Resolution  .    .  7 

Presidential  Address  at  the  first  annual  meeting  of  the  Ameri- 
can Society  of  International  Law,  Washington,  D.  C,  April 
19,  1907. 

The  Sanction  of  International  Law 25 

Presidential  Address  at  the  second  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  24,  1908. 

The  Relations  between  International  Tribunals  of 
Arbitration  and  the  Jurisdiction  of  National 

Courts      33 

Presidential  Address  at  the  third  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  23,  1909. 

The  Basis  of  Protection  to  Citizens  Residing  Abroad       43 
Presidential  Address  at  the  fourth  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  28,  1910. 

The  Function  op  Private  Codification  in  Interna- 
tional Law 57 

Presidential  Address  at  the  fifth  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  27,  1911. 

The  Real  Significance  of  the  Declaration  of  London  .        73 
Presidential  Address  at  the  sixth  annual  meeting  of    the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  25,  1912. 

Francis  Lieber      89 

Presidential  Address  at  the  seventh  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
AprU  24,  1913. 


IV  CONTENTS 

The  Real  Monroe  Doctrine 105 

Presidential  Address  at  the  eighth  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  22,  1914. 

Address  at  a  Conference  of  Teachers  of  Interna- 
tional Law 125 

Opening  Remarks  at  a  conference  held  in  Washington,  D.C., 
April  23-25, 1914,  under  the  auspices  of  the  American  Society 
of'Intemational  Law. 

The  Hague  Peace  Conferences 129 

Address  in  the  National  Arbitration  and  Peace  Congress, 
New  York,  April  15,  1907. 

The  Importance  of  Judicial  Settlement 145 

Opening  Address  at  the  International  Conference  of  the 
American  Society  for  Judicial  Settlement  of  International 
Disputes,  Washington,  D.C,  December  15,  1910. 

Nobel  Peace  Prize  Address 153 

A  Speech  prepared  in  acceptance  of  the  Nobel  Peace  Prize  of 
1912. 

The  Ethics  of  the  Panama  Question 175 

Address  before  the  Union  League  Club  of  Chicago,  February 
22,  1904. 

The  Obligations  of  the  United  States  as  to  Panama 

Canal  Tolls 207 

Address  in  the  Senate  of  the  United  States,  January  21, 1913. 

Panama  Canal  Tolls 241 

Si)eech  in  reply  in  the  Senate  of  the  United  States,  May  21, 
1914. 

The  Treaty  of  1832  with  Russia 313 

Address  in  the  Senate  of  the  United  States,  December  19, 
1911. 

The  Mexican  Resolution 327 

Address  in  the  Senate  of  the  United  States,  April  21,  1914. 

The  Ship  Purchase  Bill 337 

An  Address  delivered  in  the  United  States  Senate,  January  4, 
1915. 

Second  Speech  on  the  Ship  Purchase  Bill 341 

An  Address  delivered  in  the  United  States  Senate,  January  25, 
1915. 


CONTENTS  V 

The  Outlook  for  International  Law 391 

Presidential  Address  at  the  ninth  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
December  28,  1915. 

Should  International  Law  be  Codified  ? 405 

Address  at  the  joint  meeting  of  the  Subsection  on  Interna- 
tional Law  of  the  Second  Pan-American  Scientific  Congress, 
Washington,  D.  C,  December  30,  1915. 

The  Declaration  of  the  Rights  and  Duties  of  Nations 

OF  THE  American  Institute  of  International  Law      413 
Presidential  Address  at  the  tenth  annual  meeting  of  the 
American  Society  of  International  Law,  Washington,  D.  C, 
April  27,  1916. 

Foreign  Affairs,  1913-1916 427 

Address  as  Temporary  Chairman  of  the  New  York  Republican 
State  Convention,  New  York,  February  15,  1916. 

Index 449 


INTRODUCTORY  NOTE 

The  collected  addresses  and  state  papers  of  Elihu  Root,  of 
which  this  is  one  of  several  volumes,  cover  the  period  of  his 
service  as  Secretary  of  War,  as  Secretary  of  State,  and  as 
Senator  of  the  United  States,  during  which  time,  to  use  his 
own  expression,  his  only  client  was  his  country. 

The  many  formal  and  occasional  addresses  and  speeches, 
which  will  be  found  to  be  of  a  remarkably  wide  range,  are 
followed  by  his  state  papers,  such  as  the  instructions  to 
the  American  delegates  to  the  Second  Hague  Peace  Confer- 
ence and  other  diplomatic  notes  and  documents,  prepared 
by  him  as  Secretary  of  State  in  the  performance  of  his  duties 
as  an  executive  officer  of  the  United  States.  Although  the 
official  documents  have  been  kept  separate  from  the  other 
papers,  this  plan  has  been  slightly  modified  in  the  volume 
devoted  to  the  military  and  colonial  policy  of  the  United 
States,  which  includes  those  portions  of  his  official  reports  as 
Secretary  of  War  throwing  light  upon  his  public  addresses  and 
his  general  military  policy. 

The  addresses  and  speeches  selected  for  publication  are 
not  arranged  chronologically,  but  are  classified  in  such  a  way 
that  each  volume  contains  addresses  and  speeches  relating 
to  a  general  subject  and  a  common  purpose.  The  addresses 
as  president  of  the  American  Society  of  International  Law 
show  his  treatment  of  international  questions  from  the 
theoretical  standpoint,  and  in  the  light  of  his  experience  as 
Secretary  of  War  and  as  Secretary  of  State,  unrestrained  and 
uncontrolled  by  the  limitations  of  official  position,  whereas 
his  addresses  on  foreign  affairs,  delivered  while  Secretary  of 
State  or  as  United  States  Senator,  discuss  these  questions 
under  the  reserve  of  official  responsibility. 


viii  INTRODUCTORY  NOTE 

Mr.  Root's  addresses  on  government,  citizenship,  and 
legal  procedure  are  a  masterly  exposition  of  the  principles 
of  the  Constitution  and  of  the  government  established  by 
it;  of  the  duty  of  the  citizen  to  understand  the  Constitu- 
tion and  to  conform  his  conduct  to  its  requirements;  and 
of  the  right  of  the  people  to  reform  or  to  amend  the  Con- 
stitution in  order  to  make  representative  government  more 
effective  and  responsive  to  their  present  and  future  needs. 
The  addresses  on  law  and  its  administration  state  how  legal 
procedure  should  be  modified  and  simplified  in  the  interest 
of  justice  rather  than  in  the  supposed  interest  of  the  legal 
profession. 

The  addresses  delivered  during  the  trip  to  South  America 
and  Mexico  in  1906,  and  in  the  United  States  after  his  return, 
with  their  message  of  good  will,  proclaim  a  new  doctrine  — 
the  Root  doctrine  —  of  kindly  consideration  and  of  honorable 
obligation,  and  make  clear  the  destiny  common  to  the 
peoples  of  the  Western  World. 

The  addresses  and  the  reports  on  military  and  colonial 
policy  made  by  Mr.  Root  as  Secretary  of  War  explain  the 
reorganization  of  the  army  after  the  Spanish- American  War, 
the  creation  of  the  General  Staff,  and  the  establishment  of  the 
Army  War  College.  They  trace  the  origin  of  and  give  the 
reason  for  the  policy  of  this  country  in  Cuba,  the  Philippines, 
and  Porto  Rico,  devised  and  inaugurated  by  him.  It  is  not 
generally  known  that  the  so-called  Piatt  Amendment, 
defining  our  relations  to  Cuba,  was  drafted  by  Mr.  Root,  and 
that  the  Organic  Act  of  the  Philippines  was  likewise  the  work 
of  Mr.  Root  as  Secretary  of  War. 

The  argument  before  The  Hague  Tribunal  jp  the  North 
Atlantic  Fisheries  Case  is  a  rare  if  not  the  only  instance  of  a 
statesman  app>earing  as  chief  counsel  in  an  international 
arbitration,  which,  as  Secretary  of  State,  he  had  prepared 
and  submitted. 


I 


INTRODUCTORY  NOTE  ix 

The  political,  educational,  historical,  and  commemorative 
speeches  and  addresses  should  make  known  to  future  genera- 
tions the  literary,  artistic,  and  emotional  side  of  a  statesman 
of  our  time,  and  the  publication  of  these  collected  addresses 
and  state  papers  will,  it  is  believed,  enable  the  American 
people  better  to  understand  the  generation  in  which  Mr.  Root 
has  been  a  commanding  figure  and  better  to  appreciate 
during  his  lifetime  the  services  which  he  has  rendered  to 
his  country. 

Robert  Bacon. 

James  Brown  Scott. 
Apbil  15, 1916. 


ADDRESSES   ON 
INTERNATIONAL  SUBJECTS 


THE  NEED  OF  POPULAR  UNDERSTANDING 
OF  INTERNATIONAL  LAW 

At  the  eleventh  annual  meeting  of  the  Lake  Mohonk  Conference  on  Inter- 
national Arbitration  the  advisability  of  forming  an  American  society  of  international 
law  was  considered  on  Jime  2, 1905,  by  those  gentlemen  present  who  were  interested 
in  international  law  as  such.  The  idea  was  approved  and  a  committee  was  appointed 
to  take  the  necessary  steps.  On  January  12,  1906,  the  American  Society  of  Inter- 
national Law  was  organized  in  the  rooms  of  the  Bar  Association  of  the  City  of  New 
York.  A  constitution  was  adopted  and  oflScers  selected.  Mr.  Root  was  elected  the 
first  president  of  the  Society,  and  he  has  since  been  continued  in  that  position.  To 
the  first  issue  of  the  American  Journal  of  International  Law  (1907),  the  organ 
of  the  Society,  Mr.  Root  contributed  the  following  article: 

THE  increase  of  popular  control  over  national  conduct, 
which  marks  the  political  development  of  our  time, 
makes  it  constantly  more  important  that  the  great  body  of 
the  people  in  each  country  should  have  a  just  conception 
of  their  international  rights  and  duties. 

Governments  do  not  make  war  nowadays  unless  assured  of 
general  and  hearty  support  among  their  people;  and  it  some- 
times happens  that  governments  are  driven  into  war  against 
their  will  by  the  pressure  of  strong  popular  feeling.  It  is  not 
uncommon  to  see  two  governments  striving  in  the  most  con- 
ciliatory and  patient  way  to  settle  some  matter  of  diflFerence 
peaceably,  while  a  large  part  of  the  people  in  both  countries 
maintain  an  uncompromising  and  belligerent  attitude,  in- 
sisting upon  the  extreme  and  uttermost  view  of  their  own 
rights  in  a  way  which,  if  it  were  to  control  national  action, 
would  render  peaceable  settlement  impossible. 

One  of  the  chief  obstacles  to  the  peaceable  adjustment  of 
international  controversies  is  the  fact  that  the  negotiator  or 
arbitrator  who  yields  any  part  of  the  extreme  claims  of  his 
own  coimtry  and  concedes  the  reasonableness  of  any  argu- 
ment of  the  other  side  is  quite  likely  to  be  violently  con- 


4  INTERNATIONAL  SUBJECTS 

demned  by  great  numbers  of  his  own  countrymen  who  have 
never  taken  the  pains  to  make  themselves  familiar  with  the 
merits  of  the  controversy  or  have  considered  only  the  argu- 
ments on  their  own  side.  Sixty-four  years  have  passed  since 
the  northeastern  boundary  between  the  United  States  and 
Canada  was  settled  by  the  Webster-Ashburton  Treaty  of 
1842;  yet  to  this  day  there  are  many  people  on  our  side  of  the 
line  who  condemn  Mr.  Webster  for  sacrificing  our  rights,  and 
many  people  on  the  Canadian  side  of  the  line  who  blame 
Lord  Ashburton  for  sacrificing  their  rights,  in  that  treaty. 
Both  sets  of  objectors  cannot  be  right;  it  seems  a  fair  infer- 
ence that  neither  of  them  is  right;  yet  both  Mr.  Webster  and 
Lord  Ashburton  had  to  endure  reproach  and  obloquy  as  the 
price  of  agreeing  upon  a  settlement  which  has  been  worth  to 
the  peace  and  prosperity  of  each  country  a  thousand  times  as 
much  as  the  value  of  all  the  territory  that  was  in  dispute. 

In  the  great  business  of  settling  international  controversies 
without  war,  whether  it  be  by  negotiation  or  arbitration, 
essential  conditions  are  reasonableness  and  good  temper,  a 
willingness  to  recognize  facts  and  to  weigh  arguments  which 
make  against  one's  own  country  as  well  as  those  which  make 
for  one's  own  country;  and  it  is  very  important  that  in 
every  country  the  people  whom  negotiators  represent  and  to 
whom  arbitrators  must  return,  shall  be  able  to  consider  the 
controversy  and  judge  the  action  of  their  representatives  in 
this  instructed  and  reasonable  way. 

One  means  to  bring  about  this  desirable  condition  is  to 
increase  the  general  public  knowledge  of  international  rights 
and  duties  and  to  promote  a  popular  habit  of  reading  and 
thinking  about  international  affairs.  The  more  clearly  the 
people  of  a  country  understand  their  own  international 
rights  the  less  likely  they  are  to  take  extreme  and  extrava- 
gant views  of  their  rights  and  the  less  likely  they  are  to  be 
ready  to  fight  for  something  to  which  they  are  not  really 


NEED  OF  POPULAR  UNDERSTANDING  5 

entitled.  The  more  clearly  and  universally  the  people  of  a 
country  realize  the  international  obligations  and  duties  of 
their  country,  the  less  likely  they  will  be  to  resent  the  just 
demands  of  other  countries  that  those  obligations  and  duties 
be  observed.  The  more  familiar  the  people  of  a  country  are 
with  the  rules  and  customs  of  self-restraint  and  courtesy 
between  nations  which  long  experience  has  shown  to  be  in- 
dispensable for  preserving  the  peace  of  the  world,  the  greater 
will  be  the  tendency  to  refrain  from  publicly  discussing  con- 
troversies with  other  countries  in  such  a  way  as  to  hinder 
peaceful  settlement  by  wounding  sensibilities  or  arousing 
anger  and  prejudice  on  the  other  side. 

In  every  civil  community  it  is  necessary  to  have  courts  to 
determine  rights  and  officers  to  compel  observance  of  the  law; 
yet  the  true  basis  of  the  peace  and  order  in  which  we  live  is 
not  fear  of  the  policeman;  it  is  the  self-restraint  of  the  thou- 
sands of  people  who  make  up  the  community  and  their  will- 
ingness to  obey  the  law  and  regard  the  rights  of  others.  The 
true  basis  of  business  is  not  the  sheriff  with  a  writ  of  execu- 
tion; it  is  the  voluntary  observance  of  the  rules  and  obliga- 
tions of  business  life  which  are  universally  recognized  as 
essential  to  business  success.  Just  so  while  it  is  highly 
important  to  have  controversies  between  nations  settled  by 
arbitration  rather  than  by  war,  and  the  growth  of  sentiment 
in  favor  of  that  peaceable  method  of  settlement  is  one  of  the 
great  advances  in  civilization  to  the  credit  of  this  generation; 
yet  the  true  basis  of  peace  among  men  is  to  be  found  in  a  just 
and  considerate  spirit  among  the  people  who  rule  our  modern 
democracies,  in  their  regard  for  the  rights  of  other  countries, 
and  in  their  desire  to  be  fair  and  kindly  in  the  treatment  of 
the  subjects  which  give  rise  to  international  controversies. 

Of  course  it  cannot  be  expected  that  the  whole  body  of  any 
people  will  study  international  law;  but  a  sufficient  number 
can  readily  become  sufficiently  familiar  with  it  to  lead  and 


6  INTERNATIONAL  SUBJECTS 

form  public  opinion  in  every  community  in  our  country  upon 
all  important  international  questions  as  they  arise. 

For  these  reasons  it  seems  to  me  that  the  influence  of  the 
new  American  Society  of  International  Law  and  the  publica- 
tion of  its  Quarterly  wiU  be  of  practical  benefit  to  the  people 
of  the  United  States;  and  I  commend  the  Association  and 
the  Quarterly  to  the  support  of  thoughtful  men  and  women 
who  wish  to  help  in  promoting  the  cause  of  international 
justice  and  peace. 


THE  REAL  QUESTIONS  UNDER  THE  JAPAN- 
ESE TREATY  AND  THE  SAN  FRANCISCO 
SCHOOL  BOARD  RESOLUTION 

PRESroENTIAL  ADDRESS  AT  THE  FIRST  ANNUAL  MEETE^G  OF 

THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  D.C.,  APRIL  19,  1907 

IN  opening  this  meeting  of  the  American  Society  of  In- 
ternational Law,  which  I  hope  will  be  the  first  of  many 
meetings  in  unbroken  succession  to  continue  long  after  we 
personally  have  ceased  to  take  part  in  aflfairs,  let  me  welcome 
you  to  the  beginning  of  your  labors  for  a  more  thorough 
imderstanding  of  this  important  and  fascinating  subject.  It 
is  impossible  that  the  human  mind  should  be  addressed  to 
questions  better  worth  its  noblest  efforts,  offering  a  greater 
opportimity  for  usefulness  in  the  exercise  of  its  powers,  or 
more  full  of  historical  and  contemporary  interest,  than  in 
the  field  of  international  rights  and  duties.  The  change  in  the 
theory  and  practice  of  government  which  has  marked  the 
century  since  the  establishment  of  the  American  Union  has 
shifted  the  determination  of  great  questions  of  domestic  na- 
tional policy  from  a  few  rulers  in  each  country  to  the  great 
body  of  the  people,  who  render  the  ultimate  decision  under 
all  modem  constitutional  governments.  Coincident  with 
that  change  the  practice  of  diplomacy  has  ceased  to  be  a 
mystery  confined  to  a  few  learned  men  who  strive  to  give 
effect  to  the  wishes  of  personal  rulers,  and  has  become  a  rep- 
resentative function  answering  to  the  opinions  and  the  will 
of  the  multitude  of  citizens,  who  themselves  create  the  rela- 
tions between  states  and  determine  the  issues  of  friendship 
and  estrangement,  of  peace  and  war.   Under  the  new  system 


8  INTERNATIONAL  SUBJECTS 

there  are  many  dangers  from  which  the  old  system  was  free. 
The  rules  and  customs  which  the  experience  of  centuries  had 
shown  to  be  essential  to  the  maintenance  of  peace  and  good 
understanding  between  nations  have  little  weight  with  the 
new  popular  masters  of  diplomacy;  the  precedents  and  agree- 
ments of  opinion  which  have  carried  so  great  a  part  of  the 
rights  and  duties  of  nations  toward  each  other  beyond  the 
pale  of  discussion  are  but  little  understood.  The  education  of 
public  opinion,  which  should  lead  the  sovereign  people  in  each 
country  to  understand  the  definite  limitations  upon  national 
rights  and  the  full  scope  and  responsibility  of  national  duties, 
has  only  just  begun.  Information,  understanding,  leadership 
of  opinion  in  these  matters,  so  vital  to  wise  judgment  and 
right  action  in  international  affairs,  are  much  needed.  This 
society  may  serve  as  a  collegium,  in  the  true  sense  of  the  word, 
in  which  all  who  choose  to  seek  a  broader  knowledge  of  the 
law  that  governs  the  affairs  of  nations  may  give  each  to  the 
other  the  incitement  of  earnest  and  faithful  study  and  may 
give  to  the  great  body  of  our  countrymen  a  clearer  view  of 
their  international  rights  and  responsibilities. 

I  shall  detain  you  from  the  interesting  program  of  instruc- 
tion and  discussion  which  has  been  arranged  for  this  meeting 
only  by  trying  to  illustrate  the  kind  of  service  that  the  society 
may  render,  in  a  few  remarks  intended  to  clear  away  a  some- 
what widespread  popular  misapprehension  regarding  a 
question  arising  under  a  treaty  of  the  United  States. 

The  treaty  of  November  22,  1894,  between  the  United 
States  and  Japan  provided,  in  the  first  article: 

The  citizens  or  subjects  of  each  of  the  two  high  contracting  parties  shall 
have  full  liberty  to  enter,  travel,  or  reside  in  any  part  of  the  territory  of  the 
other  contracting  party,  and  shall  enjoy  full  and  perfect  protection  for 
their  persons  and  property.  ... 

In  whatever  relates  to  rights  of  residence  and  travel;  to  the  possession 
of  goods  and  eflfects  of  any  kind;  to  the  succession  to  personal  estate,  by 
will  or  otherwise,  and  the  disposal  of  property  of  any  sort  and  in  any  man- 


THE  JAPANESE  TREATY  9 

ner  whatsoever  wMch  they  may  lawfully  acquire,  the  citizens  or  subjects 
of  each  contracting  party  shall  enjoy  in  the  territories  of  the  other  the  same 
privileges,  liberties,  and  rights,  and  shall  be  subject  to  no  higher  imp)osts 
or  charges  in  these  respects  than  native  citizens  or  subjects  or  citizens  or 
subjects  of  the  most  favored  nation. 

The  constitution  of  the  state  of  California  provides,  in 
article  9: 

Section  1.  A  general  diffusion  of  knowledge  and  intelligence  being 
essential  to  the  preservation  of  the  rights  and  liberties  of  the  p>eople,  the 
legislature  shall  encourage  by  all  suitable  means  the  promotion  of  intel- 
lectual, scientific,  moral  and  agricultural  improvement. 

Sec.  5.  The  legislature  shall  provide  for  a  system  of  common  schools, 
by  which  a  free  school  shall  be  kept  up  and  supported  in  each  district  at 
least  six  months  in  every  year,  after  the  first  year  in  which  a  school  has 
been  established. 

Sec.  6.  The  public  school  system  shall  include  primary  and  grammar 
schools,  and  such  high  schools,  evening  schools,  normal  schools  and  tech- 
nical schools  as  may  be  established  by  the  legislature,  or  by  municipal  or 
district  authority.  The  entire  revenue  derived  from  the  state  school  fund 
and  from  the  general  state  school  tax  shall  be  apphed  exclusively  to  the 
support  of  the  primary  and  granunar  schools. 

The  statutes  of  California  establish  the  public  school  sys- 
tem required  by  the  constitution.  They  provide  that  the 
State  Comptroller  must  each  year 

estimate  the  amount  necessary  to  raise  the  sum  of  seven  dollars  for  each 
census  child  between  the  ages  of  five  and  seventeen  years  in  the  said  state 
of  California,  which  shall  be  the  amount  necessary  to  be  raised  by  ad 
valorem  tax  for  the  school  purposes  during  the  year. 

The  statutes  further  provide  that  the  Board  of  Education 
of  San  Francisco  shall  have  authority 

to  establish  and  enforce  all  necessary  rules  and  regulations  for  the  govern- 
ment and  eflSciency  of  the  schools  [in  that  city]  and  for  the  carrying  into 
effect  the  school  system;  to  remedy  truancy;  and  to  compel  attendance 
at  school  of  children  between  the  ages  of  six  and  fourteen  years,  who  may 
be  found  idle  in  public  places  during  school  hours. 

The  statutes  further  provide,  in  section  1662  of  the  school 
law: 


10  INTERNATIONAL  SUBJECTS 

Every  school,  unless  otherwise  provided  by  law,  must  be  open  for  the 
admission  of  all  children  between  six  and  twenty-one  years  of  age  resid- 
ing in  the  district,  and  the  board  of  school  trustees,  or  city  board  of  edu- 
cation, have  power  to  admit  adults  and  children  not  residing  in  the  district, 
whenever  good  reasons  exist  therefor.  Trustees  shall  have  the  power  to 
exclude  children  of  filthy  or  vicious  habits,  or  children  suffering  from  con- 
tagious or  infectious  diseases,  and  also  to  establish  separate  schools  for 
Indian  children  and  for  cliildren  of  MongoUan  or  Chinese  descent.  When 
such  separate  schools  are  established,  Indian,  Chinese,  or  Mongolian 
children  must  not  be  admitted  into  any  other  school. 

On  October  11, 1906,  the  Board  of  Education  of  San  Fran- 
cisco adopted  a  resolution  in  these  words: 

Resolved:  That  in  accordance  with  article  X,  section  1662,  of  the  school 
law  of  California,  principals  are  hereby  directed  to  send  all  Chinese,  Japa- 
nese, or  Korean  children  to  the  Oriental  Public  School,  situated  on  the 
south  side  of  Clay  Street,  between  Powell  and  Mason  Streets,  on  and  after 
Monday,  October  15,  1906. 

The  school  system  thus  provided  school  privileges  for  all 
resident  children,  whether  citizen  or  alien;  all  resident  chil- 
dren were  included  in  the  basis  for  estimating  the  amount  to 
be  raised  by  taxation  for  school  purposes;  the  fund  for  the 
support  of  the  school  was  raised  by  general  taxation  upon  all 
property  of  resident  aliens  as  well  as  of  citizens;  and  all  resi- 
dent children,  whether  of  aliens  or  of  citizens,  were  liable  to 
be  compelled  to  attend  the  schools.  So  that,  under  the  reso- 
lution of  the  Board  of  Education,  the  children  of  resident 
aliens  of  all  other  nationalities  were  freely  admitted  to  the 
schools  of  the  city  in  the  neighborhood  of  their  homes,  while 
the  cliildren  of  Indians,  Chinese  and  Japanese  were  excluded 
from  those  schools,  and  were  not  only  deprived  of  education 
unless  they  consented  to  go  to  the  special  oriental  school  on 
Clay  Street,  but  were  liable  to  be  forcibly  compelled  to  go  to 
that  particular  school. 

After  the  passage  of  this  resolution,  admission  to  the  ordi- 
nary primary  schools  of  San  Francisco  was  denied  to  Japa- 
nese children,  and  thereupon  the  Government  of  Japan  made 


THE  JAPANESE  TREATY  11 

representations  to  the  Government  of  the  United  States  that 
inasmuch  as  the  children  of  residents  who  were  citizens  of  all 
other  foreign  countries  were  freely  admitted  to  the  schools, 
the  citizens  of  Japan  residing  in  the  United  States  were,  by 
that  exclusion,  denied  the  same  privileges,  liberties,  and  rights 
relating  to  the  right  of  residence  which  were  accorded  to  the 
citizens  or  subjects  of  the  most  favored  nation.  The  ques- 
tions thus  raised  were  promptly  presented  by  the  Government 
of  the  United  States  to  the  federal  court  in  California,  and 
also  to  the  state  court  of  California,  in  appropriate  legal  pro- 
ceedings. The  matter  has  been  happily  disposed  of  without 
proceeding  to  judgment  in  either  case;  but  in  the  meantime 
there  was  much  excited  discussion  of  the  subject  in  the  news- 
papers and  in  public  meetings  and  in  private  conversation. 

It  is  a  pleasure  to  be  able  to  say  that  never  for  a  moment 
was  there  as  between  the  Government  of  the  United  States 
and  the  Government  of  Japan,  the  slightest  departure  from 
perfect  good  temper,  mutual  confidence,  and  kindly  con- 
sideration; and  that  no  sooner  had  the  views  and  purposes  of 
the  Governments  of  the  United  States,  the  state  of  California, 
and  the  city  of  San  Francisco  been  explained  by  each  to  the 
other  than  entire  harmony  and  good  understanding  resulted, 
with  a  common  desire  to  exercise  the  powers  vested  in  each, 
for  the  common  good  of  the  whole  country,  of  the  state,  and 
of  the  city. 

The  excitement  has  now  subsided,  so  that  it  may  be  useful 
to  consider  what  the  question  really  was,  not  because  it  is 
necessary  for  the  purposes  of  that  particular  case,  but  be- 
cause of  its  bearing  upon  cases  which  may  arise  in  the 
future  under  the  application  of  the  treaty-making  power 
of  the  United  States  to  other  matters  and  in  other  parts  of 
the  national  domain. 

It  is  obvious  that  three  distinct  questions  were  raised  by 
the  claim  originating  with  Japan  and  presented  by  our  na- 


12  INTERNATIONAL  SUBJECTS 

tional  government  to  the  courts  in  San  Francisco.  The  first 
and  second  were  merely  questions  of  construction  of  the 
treaty.  Was  the  right  to  attend  the  primary  schools  a  right, 
liberty,  or  privilege  of  residence  ?  and,  if  so,  was  the  limita- 
tion of  Japanese  children  to  the  oriental  school  and  their 
exclusion  from  the  ordinary  schools  a  deprivation  of  that 
right,  liberty,  or  privilege  ?  These  questions  of  construction, 
and  especially  the  second,  are  by  no  means  free  from  doubt; 
but  as  they  concern  only  the  meaning  of  a  particular  clause 
in  a  particular  treaty  they  are  not  of  permanent  importance, 
and,  the  particular  occasion  for  their  consideration  having 
passed,  they  need  not  now  be  discussed. 

The  other  question  was  whether,  if  the  treaty  had  the 
meaning  which  the  Government  of  Japan  ascribed  to  it,  the 
Government  of  the  United  States  had  the  constitutional 
power  to  make  such  a  treaty  agreement  with  a  foreign  nation 
which  should  be  superior  to  and  controlling  upon  the  laws  of 
the  state  of  California.  A  correct  understanding  of  that 
question  is  of  the  utmost  importance  not  merely  as  regards 
the  state  of  Cahfomia,  but  as  regards  all  states  and  all 
citizens  of  the  Union. 

There  was  a  very  general  misapprehension  of  what  this 
treaty  really  undertook  to  do.  It  was  assumed  that  in  mak- 
ing and  asserting  the  validity  of  the  treaty  of  1894  the 
United  States  was  asserting  the  right  to  compel  the  state  of 
California  to  admit  Japanese  children  to  its  schools.  No 
such  question  was  involved.  That  treaty  did  not,  by  any 
possible  construction,  assert  the  authority  of  the  United 
States  to  compel  any  state  to  maintain  public  schools,  or  to 
extend  the  privileges  of  its  public  schools  to  Japanese  chil- 
dren or  to  the  children  of  any  alien  residents.  The  treaty  did 
assert  the  right  of  the  United  States,  by  treaty,  to  assure  to 
the  citizens  of  a  foreign  nation  residing  in  American  territory 
equality  of  treatment  with  the  citizens  of  other  foreign  na- 


THE  JAPANESE  TREATY  13 

tions,  so  that  if  any  state  chooses  to  extend  privileges  to  alien 
residents  as  well  as  to  citizen  residents,  the  state  will  be  for- 
bidden by  the  obligation  of  the  treaty  to  discriminate  against 
the  resident  citizens  of  the  particular  country  with  which  the 
treaty  is  made  and  will  be  forbidden  to  deny  to  them  the 
privileges  which  it  grants  to  the  citizens  of  other  foreign 
countries.  The  effect  of  such  a  treaty,  in  respect  of  educa- 
tion, is  not  positive  and  compulsory;  it  is  negative  and  pro- 
hibitory. It  is  not  a  requirement  that  the  state  shall  furnish 
education;  it  is  a  prohibition  against  discrimination  when 
the  state  does  choose  to  furnish  education.  It  leaves  every 
state  free  to  have  public  schools  or  not,  as  it  chooses,  but  it 
says  to  every  state:  "  If  you  provide  a  system  of  education 
which  includes  alien  children,  you  must  not  exclude  these 
particular  alien  children." 

It  has  been  widely  asserted  or  assumed  that  this  treaty 
provision  and  its  enforcement  involved  some  question  of 
state's  rights.  There  was  and  is  no  question  of  state's  rights 
involved,  unless  it  be  the  question  which  was  settled  by  the 
adoption  of  the  Constitution. 

This  will  be  apparent  upon  considering  the  propositions 
which  I  will  now  state: 

1.  The  people  of  the  United  States,  by  the  Constitution  of 
1787,  vested  the  whole  treaty-making  power  in  the  national 
government.    They  provided: 

The  president  shall  have  power,  by  and  with  the  advice  and  consent  of 
the  senate,  to  make  treaties,  provided  two-thirds  of  the  senators  present 
concur.    (Art.  II,  sec.  2.) 

No  state  shall  enter  into  any  treaty,  alliance  or  confederation;  .  .  .  No 
state  shall,  without  the  consent  of  congress,  .  .  .  enter  into  any  agreement 
or  compact  with  another  state,  or  with  a  foreign  power.    (Art.  I,  sec.  10.) 

This  constitution,  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  state  shall  be  bound  thereby,  anything  in  the  con- 
stitution or  laws  of  any  state  to  the  contrary  notwithstanding.    (Art.  VI.) 


14  INTERNATIONAL  SUBJECTS 

Legislative  power  is  distributed:  upon  some  subjects  the 
national  legislature  has  authority;  upon  other  subjects  the 
state  legislature  has  authority.  Judicial  power  is  distributed : 
in  some  cases  the  federal  courts  have  jurisdiction,  in  other 
cases  the  state  courts  have  jurisdiction.  Executive  power  is 
distributed:  in  some  fields  the  national  executive  is  to  act; 
in  other  fields  the  state  executive  is  to  act.  The  treaty-mak- 
ing power  is  not  distributed;  it  is  all  vested  in  the  national 
government;  no  part  of  it  is  vested  in  or  reserved  to  the 
states.  In  international  affairs  there  are  no  states;  there  is 
but  one  nation,  acting  in  direct  relation  to  and  representation 
of  every  citizen  in  every  state.  Every  treaty  made  under  the 
authority  of  the  United  States  is  made  by  the  national  gov- 
ernment, as  the  direct  and  sole  representative  of  every  citizen 
of  the  United  States  residing  in  California  equally  with  every 
citizen  of  the  United  States  residing  elsewhere.  It  is,  of 
course,  conceivable  that,  under  pretense  of  exercising  the 
treaty-making  power,  the  President  and  Senate  might  at- 
tempt to  make  provisions  regarding  matters  which  are  not 
proper  subjects  of  international  agreement,  and  which  would 
be  only  a  colorable  —  not  a  real  —  exercise  of  the  treaty- 
making  power;  but  so  far  as  the  real  exercise  of  the  power 
goes,  there  can  be  no  question  of  state  rights,  because  the 
Constitution  itself,  in  the  most  explicit  terms,  has  precluded 
the  existence  of  any  such  question. 

2.  Although  there  are  no  express  limitations  upon  the 
treaty-making  power  granted  to  the  national  government, 
there  are  certain  implied  limitations  arising  from  the  nature 
of  our  government  and  from  other  provisions  of  the  Constitu- 
tion; but  those  implied  limitations  do  not  in  the  slightest 
degree  touch  the  making  of  treaty  provisions  relating  to  the 
treatment  of  aliens  within  our  territory. 

In  the  case  of  Geofroy  v.  Riggs,  which,  in  1889,  sustained 
the  rights  of  French  citizens  under  the  treaty  of  1800  to  take 


THE  JAPANESE  TREATY  15 

and  hold  real  and  personal  property  in  contravention  of  the 
common  law  and  the  statutes  of  the  state  of  Maryland,  the 
Supreme  Court  of  the  United  States  said: 

That  the  treaty  power  of  the  United  States  extends  to  all  proper  subjects 
of  negotiation  between  our  government  and  the  governments  of  other 
nations  is  clear.  .  .  .  The  treaty  power,  as  expressed  in  the  constitution, 
is  in  terms  unlimited  except  by  those  restraints  which  are  found  in  that 
instrument  against  the  action  of  the  government  or  of  its  departments,  and 
those  arising  from  the  natiu-e  of  the  government  itself  and  of  that  of  the 
states.  It  would  not  be  contended  that  it  extends  so  far  as  to  authorize 
what  the  constitution  forbids,  or  a  change  in  the  character  of  the  govern- 
ment, or  in  that  of  one  of  the  states,  or  a  cession  of  any  portion  of  the  terri- 
tory of  the  latter  without  its  consent.  But  with  these  exceptions  it  is  not 
perceived  that  there  is  any  limit  to  the  questions  which  can  be  adjusted 
touching  any  matter  which  is  properly  the  subject  of  negotiation  with  a 
foreign  country. 

3.  Reciprocal  agreements  between  nations  regarding  the 
treatment  which  the  citizens  of  each  nation  shall  receive  in 
the  territory  of  the  other  nation  are  among  the  most  familiar, 
ordinary  and  unquestioned  exercises  of  the  treaty-making 
power.  To  secure  the  citizens  of  one's  country  against  dis- 
criminatory laws  and  discriminatory  administration  in  the 
foreign  countries  where  they  may  travel  or  trade  or  reside  is, 
and  always  has  been,  one  of  the  chief  objects  of  treaty  mak- 
ing, and  such  provisions  always  have  been  reciprocal. 

During  the  entire  history  of  the  United  States  provisions 
of  this  description  have  been  included  in  our  treaties  of 
friendship,  commerce  and  navigation  with  practically  all  the 
other  nations  of  the  world.  Such  provisions  had  been  from 
time  immemorial  the  subject  of  treaty  agreements  among 
the  nations  of  Europe  before  American  independence;  and 
the  power  to  make  such  provisions  was  exercised  without 
question  by  the  Continental  Congress  in  the  treaties  which 
it  made  prior  to  the  adoption  of  our  Constitution.  The  treaty 
of  1778  with  France,  made  between  the  Most  Christian  King 
and  the  thirteen  United  States  of  North  America  by  name. 


16  INTERNATIONAL  SUBJECTS 

contained  such  provisions.  So  did  the  treaty  of  1782  between 
Their  High  Mightinesses  the  States-General  of  the  United 
Netherlands  and  the  thirteen  United  States  of  America  by 
name. 

The  treaty  of  1785  with  Prussia,  ratified  by  the  Conti- 
nental Congress  on  May  17, 1786,  contained  an  exercise  of  the 
same  kind  of  power.  Mr.  Bancroft  Davis  summarizes  the  pro- 
visions of  this  character  in  the  Prussian  treaty  in  these  words: 

The  favored  nation  clause  put  Prussia  on  the  best  footing  in  the  ports  of 
Charleston,  Boston,  Philadelphia  and  New  York,  no  matter  what  the 
legislatures  of  South  Carolina,  Massachusetts,  Pennsylvania,  or  New 
York  might  say.  Aliens  were  permitted  to  hold  personal  property  and  dis- 
pose of  it  by  testament,  donation,  or  otherwise,  and  the  exaction  of  state 
dues  in  excess  of  those  exacted  from  citizens  of  the  state  in  like  cases  were 
forbidden.  The  right  was  secured  to  aliens  to  frequent  the  coasts  of  each 
and  all  the  states,  and  to  reside  and  trade  there.  Resident  aliens  were 
assured  against  state  legislation  to  prevent  the  exercise  of  Uberty  of  con- 
science and  the  performance  of  religious  worship;  and  when  dying,  they 
were  guaranteed  the  right  of  decent  burial  and  imdisturbed  rest  for  their 
bodies. 

It  is  not  open  to  doubt  that  when  the  delegates  of  these 
thirteen  states  conferred  the  p)ower  to  make  treaties  upon  the 
new  national  government  in  the  broadest  possible  terms  and 
without  any  words  of  limitation,  the  subjects  about  which 
they  themselves  had  been  making  the  treaties  then  in  force 
were  included  in  the  power. 

The  treaty  of  July  28, 1868,  between  the  United  States  and 

China  —  the    celebrated   Burlingame   Treaty  —  contained, 

in  the  sixth  article,  a  provision  in  the  very  words  of  the 

Japanese  treaty.    That  article  provided: 

Citizens  of  the  United  States  visiting  or  residing  in  China  shall  enjoy 
the  same  privileges,  immimities  or  exemptions  in  respect  to  travel  or  resi- 
dence as  may  there  be  enjoyed  by  the  citizens  or  subjects  of  the  most 
favored  nation.  And,  reciprocally,  Chinese  subjects  visiting  or  residing  in 
the  United  States,  shall  enjoy  the  same  privileges,  immunities,  and  exemp- 
tions in  respect  to  travel  or  residence,  as  may  there  be  enjoyed  by  the 
citizens  o?  subjects  of  the  most  favored  nation. 


THE  JAPANESE  TREATY  17 

In  the  case  of  Tiburicio  Parrot  (6  Sawyer,  368)  the  Circuit 

Court  of  the  United  States  said,  Mr.  Justice  Sawyer  reading 

the  opinion: 

As  to  the  point  whether  the  provision  in  question  is  within  the  treaty- 
making  power,  I  have  as  little  doubt  as  upon  the  point  already  discussed. 
Among  all  civilized  nations,  in  modem  times  at  least,  the  treaty-making 
power  has  been  accustomed  to  determine  the  terms  and  conditions  upon 
which  the  subjects  of  the  parties  to  the  treaty  shall  reside  in  the  respec- 
tive countries,  and  the  treaty-making  power  is  conferred  by  the  Con- 
stitution in  imlimited  terms.  Besides,  the  authorities  cited  on  the  first 
point  fully  cover  and  determine  this  question.  If  the  treaty-making  power 
is  authorized  to  determine  what  foreigners  shall  be  permitted  to  come 
into  and  reside  within  the  country,  and  who  shall  be  excluded,  it  must 
have  the  power  generally  to  determine  and  prescribe  upon  what  terms  and 
conditions  such  as  are  admitted  shall  be  permitted  to  remain. 

And  regarding  the  same  treaty  the  Supreme  Court  of  the 

United  States  remarked,  in  the  case  of  Baldwin  v.  Franks 

(120U.  S.,  679): 

That  the  United  States  have  power  imder  the  Constitution  to  provide 
for  the  punishment  of  those  who  are  guilty  of  depriving  Chinese  subjects 
of  any  of  the  rights,  privileges,  immunities,  or  exemptions  guaranteed  to 
them  by  this  treaty  we  do  not  doubt. 

4.  It  has  been  settled  for  more  than  a  century  that  the 
fact  that  a  treaty  provision  would  interfere  with  or  annul 
the  laws  of  a  state  as  to  the  aliens  concerning  whom  the  provi- 
sion is  made,  is  no  impeachment  of  the  treaty's  authority. 

The  very  words  of  the  Constitution,  that  the  judges  in 
every  state  shall  be  bound  by  a  treaty  "  anything  in  the  con- 
stitution or  laws  of  any  state  to  the  contrary  notwithstand- 
ing," necessarily  imply  an  expectation  that  some  treaties  will 
be  made  in  contravention  of  laws  of  the  states.  Far  from  the 
treaty-making  power  being  limited  by  state  laws,  its  scope  is 
entirely  independent  of  those  laws;  and  whenever  it  deals 
with  the  same  subject,  if  inconsistent  with  the  law,  it  annuls 
the  law.  This  is  true  as  to  any  laws  of  the  states,  whether  the 
legislative  authority  under  which  they  are  passed  is  con- 


18  INTERNATIONAL  SUBJECTS 

current  with  that  of  Congress,  or  exclusive  of  that  of  Con- 
gress. 

In  the  case  of  Ware  v.  Hylton  the  Supreme  Court  of  the 
United  States,  in  the  year  1796,  considered  the  effect  under 
the  Constitution  of  the  treaty  of  peace  with  England  of  1783, 
which  provided  that 

creditors  on  either  side  should  meet  with  no  lawful  im|)ediment  to  the 
recovery  of  the  full  value  in  Stirling  money,  of  all  bona  fide  debts,  thereto- 
fore contracted, 

as  against  a  law  of  the  state  of  Virginia,  which  confiscated  to 
the  state  of  Virginia  the  debts  due  from  its  citizens  to  British 
subjects. 

The  court  said: 

There  can  be  no  limitation  on  the  power  of  the  people  of  the  United 
States.  By  their  authority  the  state  constitutions  were  made,  and  by 
their  authority  the  Constitution  of  the  United  States  was  established;  and 
they  had  the  power  to  change  or  abolish  the  state  constitutions,  or  to 
make  them  yield  to  the  general  government  and  to  treaties  made  by  their 
authority.  A  treaty  cannot  be  the  supreme  law  of  the  land  —  that  is,  of 
all  the  United  States  —  if  any  act  of  a  state  legislature  can  stand  in  its  way. 
If  the  constitution  of  a  state  (which  is  the  fundamental  law  of  the  state, 
and  paramount  to  its  legislatiu-e)  must  give  way  to  a  treaty  and  fall  before 
it,  can  it  be  questioned  whether  the  less  power,  an  act  of  the  state  legisla- 
ture, must  not  be  prostrate  ?  It  is  the  declared  will  of  the  people  of  the 
United  States  that  every  treaty  made  by  the  authority  of  the  United 
States  shall  be  superior  to  the  constitution  and  laws  of  any  individual 
state;  and  their  will  alone  is  to  decide.  .  .  . 

Foiu*  things  are  apparent  on  a  view  of  this  sixth  article  of  the  national 
Constitution :  1st.  That  it  is  retrospective,  and  is  to  be  considered  in  the 
same  light  as  if  the  Constitution  had  been  established  before  the  making  of 
the  treaty  of  1783.  2d.  That  the  constitution  or  laws  of  any  of  the  states, 
so  far  as  either  of  them  shall  be  found  contrary  to  that  treaty,  are  by  force 
of  the  said  article  prostrated  before  the  treaty.  3d.  That,  consequently, 
the  treaty  of  1783  has  superior  power  to  the  legislatmre  of  any  state,  be- 
cause no  legislature  of  any  state  has  any  kind  of  pjower  over  the  Constitu- 
tion, which  was  its  creator.  4th.  That  it  is  the  declared  duty  of  the  state 
judges  to  determine  any  constitution  or  laws  of  any  state  contrary  to  that 
treaty  (or  any  other),  made  imder  the  authority  of  the  United  States,  null 
and  void.  National  or  federal  judges  are  boimd  by  duty  and  oath  to  the 
same  conduct. 


THE  JAPANESE  TREATY  19 

In  the  case  of  Fairfax  v.  Hunter,  in  1812,  Mr.  Justice  Story 
delivering  the  opinion,  the  supreme  court  of  the  United 
States  sustained  the  title  of  a  British  subject,  under  the  pro- 
visions of  the  treaty  of  1794,  in  direct  contravention  of  the 
laws  of  the  state  of  Virginia.  In  the  case  of  Chirac  v.  Chirac, 
in  1817,  Chief  Justice  Marshall  delivering  the  opinion,  the 
Supreme  Court  of  the  United  States  sustained  the  title  of  a 
French  subject  to  real  estate  in  Maryland,  in  direct  contra- 
vention of  the  laws  of  that  state.  A  long  line  of  cases  have 
followed  in  the  Supreme  Court  applying  the  provisions  of 
various  treaties  and  maintaining  without  exception  the 
unvarying  rule  that  the  state  statute  falls  before  the  treaty. 

It  equally  appears  from  these  cases  that  the  treaty  provi- 
sions which  were  sustained  by  the  Supreme  Court  and  the 
state  laws  which  were  declared  void,  so  far  as  they  conflicted 
with  a  treaty,  related  to  matters  regarding  which  Congress 
had  no  power  to  legislate,  but  upon  which,  in  the  distribution 
of  legislative  powers  under  the  Constitution,  the  states,  and 
the  states  alone,  had  power  to  legislate. 

5.  Since  the  rights,  privileges,  and  immunities,  both  of  per- 
son and  property,  to  be  accorded  to  foreigners  in  our  country 
and  to  our  citizens  in  foreign  countries  are  a  proper  subject  of 
treaty  provision  and  within  the  limits  of  the  treaty-making 
power,  and  since  such  rights,  privileges,  and  immunities  may 
be  given  by  treaty  in  contravention  of  the  laws  of  any  state, 
it  follows  of  necessity  that  the  treaty-making  power  alone  has 
authority  to  determine  what  those  rights,  privileges,  and  im- 
munities shall  be.  No  state  can  set  up  its  laws  as  against  the 
grant  of  any  particular  right,  privilege,  or  immunity  any 
more  than  against  the  grant  of  any  other  right,  privilege,  or 
immunity.  No  state  can  say  a  treaty  may  grant  to  alien 
residents  equality  of  treatment  as  to  property  but  not  as  to 
education,  or  as  to  the  exercise  of  religion  and  as  to  burial  but 
not  as  to  education,  or  as  to  education  but  not  as  to  property 


20  INTERNATIONAL  SUBJECTS 

or  religion.  That  would  be  substituting  the  mere  will  of  the 
state  for  the  judgments  of  the  President  and  Senate  in  exer- 
cising a  power  committed  to  them  and  prohibited  to  the 
states  by  the  Constitution. 

There  was,  therefore,  no  real  question  of  power  arising 
under  this  Japanese  treaty  and  no  question  of  state  rights. 

There  were,  however,  questions  of  policy,  questions  of 
national  interests  and  of  state  interests,  arising  under  the 
administration  of  the  treaty  and  regarding  the  application  of 
its  provisions  to  the  conditions  existing  on  the  Pacific  coast. 

In  the  distribution  of  powers  under  our  composite  system 
of  government  the  people  of  San  Francisco  had  three  sets  of 
interests  committed  to  three  different  sets  of  oflficers  —  their 
special  interest  as  citizens  of  the  principal  city  and  commer- 
cial port  of  the  Pacific  coast  represented  by  the  city  govern- 
ment of  San  Francisco;  their  interest  in  common  with  all  the 
people  of  the  state  of  California  represented  by  the  governor 
and  legislature  at  Sacramento;  and  their  interests  in  com- 
mon with  all  the  people  of  the  United  States  represented  by 
the  national  government  at  Washington.  Each  one  of  these 
three  different  governmental  agencies  had  authority  to  do 
certain  things  relating  to  the  treatment  of  Japanese  residents 
in  San  Francisco.  These  three  interests  could  not  be  really 
in  conflict;  for  the  best  interest  of  the  whole  country  is 
always  the  true  interest  of  every  state  and  city,  and  the  pro- 
tection of  the  interests  of  every  locality  in  the  country  is 
always  the  true  interest  of  the  nation.  There  was,  however, 
a  supposed  or  apparent  clashing  of  interests,  and,  to  do 
away  with  this,  conference,  communication,  comparison  of 
views,  explanation  of  policy  and  purpose  were  necessary. 
Many  thoughtless  and  some  mischievous  persons  have 
spoken  and  written  regarding  these  conferences  and  com- 
munications as  if  they  were  the  parleying  and  compromise  of 
enemies.    On  the  contrary,  they  were  an  example  of  the  way 


THE  JAPANESE  TREATY  21 

in  which  the  public  business  ought  always  to  be  conducted; 
so  that  the  different  public  oflScers  respectively  charged  with 
the  performance  of  duties  affecting  the  same  subject-matter 
may  work  together  in  furtherance  of  the  same  public  policy 
and  with  a  common  purpose  for  the  good  of  the  whole  coun- 
try and  every  part  of  the  country.  Such  a  concert  of  action 
with  such  a  purpose  was  established  by  the  conferences  and^ 
communications  between  the  national  authorities  and  the 
authorities  of  California  and  San  Francisco  which  followed 
the  passage  of  the  Board  of  Education  resolution. 

There  was  one  great  and  serious  question  underlying  the 
whole  subject  which  made  all  questions  of  construction  and  of 
scope  and  of  effect  of  the  treaty  itself  —  all  questions  as  to 
whether  the  claims  of  Japan  were  well  founded  or  not,  all 
questions  as  to  whether  the  resolution  of  the  School  Board 
was  valid  or  not  —  seem  temporary  and  comparatively  unim- 
portant. It  was  not  a  question  of  war  with  Japan.  All  the 
foolish  talk  about  war  was  purely  sensational  and  imagina- 
tive. There  was  never  even  friction  between  the  two  govern- 
ments. The  question  was,  What  state  of  feeling  would  be 
created  between  the  great  body  of  the  people  of  the  United 
States  and  the  great  body  of  the  people  of  Japan  as  a  result  of 
the  treatment  given  to  the  Japanese  in  this  country  ? 

What  was  to  be  the  effect  upon  that  proud,  sensitive, 
highly  civilized  people  across  the  Pacific,  of  the  discourtesy, 
insult,  imputations  of  inferiority  and  abuse  aimed  at  them  in 
the  columns  of  American  newspapers  and  from  the  platforms 
of  American  public  meetings  ?  What  would  be  the  effect 
upon  our  own  people  of  the  responses  that  natural  resent- 
ment for  such  treatment  would  elicit  from  the  Japanese  ? 

The  first  article  of  the  first  treaty  Japan  ever  made  with  a 
western  power  provided : 

There  shall  be  a  perfect,  permanent,  and  universal  peace  and  a  sincere 
and  cordial  amity  between  the  United  States  of  America  on  the  one  part. 


22  INTERNATIONAL  SUBJECTS 

and  the  empire  of  Japan  on  the  other  part,  and  between  their  people 
respectively,  without  exception  of  persons  or  places. 

Under  that  treaty,  which  bore  the  signature  of  Matthew 
Calbraith  Perry,  we  introduced  Japan  to  the  world  of  western 
civilization.  We  had  always  been  proud  of  her  wonderful 
development  —  proud  of  the  genius  of  the  race  that  in  a 
iingle  generation  adapted  an  ancient  feudal  system  of  the  far 
East  to  the  most  advanced  standards  of  modern  Europe  and 
America.  The  friendship  between  the  two  nations  had  been 
peculiar  and  close.  Was  the  declaration  of  that  treaty  to  be 
set  aside  ?  At  Kurihama,  in  Japan,  stands  a  monument  to 
Commodore  Perry,  raised  by  the  Japanese  in  grateful  appre- 
ciation, upon  the  site  where  he  landed  and  opened  negotia- 
tions for  the  treaty.  Was  that  monument  henceforth  to 
represent  dislike  and  resentment  ?  Were  the  two  peoples  to 
face  each  other  across  the  Pacific  in  future  years  with  angry 
and  resentful  feelings  ?  All  this  was  inevitable  if  the  process 
which  seemed  to  have  begun  was  to  continue,  and  the  govern- 
ment of  the  United  States  looked  with  the  greatest  solicitude 
upon  the  possibility  that  the  process  might  continue. 

It  is  hard  for  democracy  to  learn  the  responsibilities  of  its 
power;  but  the  people  now,  not  governments,  make  friend- 
ship or  dislike,  sympathy  or  discord,  peace  or  war,  between 
nations.  In  this  modern  day,  through  the  columns  of  the 
myriad  press  and  messages  flashing  over  countless  wires, 
multitude  calls  to  multitude  across  boundaries  and  oceans  in 
courtesy  or  insult,  in  amity  or  in  defiance.  Foreign  offices 
and  ambassadors  and  ministers  no  longer  keep  or  break  the 
peace,  but  the  conduct  of  each  people  toward  every  other. 
The  people  who  permit  themselves  to  treat  the  people  of 
other  countries  with  discourtesy  and  insult  are  surely  sowing 
the  wind  to  reap  the  whirlwind,  for  a  world  of  sullen  and 
revengeful  hatred  can  never  be  a  world  of  peace.  Against 
such  a  feeling  treaties  are  waste  paper  and  diplomacy  the 


THE  JAPANESE  TREATY  23 

empty  routine  of  idle  form.  The  great  question  which  over- 
shadowed all  discussion  of  the  treaty  of  1894  was  the  ques- 
tion: Are  the  people  of  the  United  States  about  to  break 
friendship  with  the  people  of  Japan  ?  That  question,  I 
beUeve,  has  been  happily  answered  in  the  negative. 


THE  SANCTION  OF  INTERNATIONAL  LAW 

PRESIDENTIAL  ADDRESS  AT  THE  SECOND  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  24,   1908 

ONE  accustomed  to  the  administration  of  municipal  law 
who  turns  his  attention  for  the  first  time  to  the  dis- 
cussion of  practical  questions  arising  between  nations  and 
dependent  upon  the  rules  of  international  law,  must  be 
struck  by  a  difference  between  the  two  systems  which  ma- 
terially affects  the  intellectual  processes  involved  in  every 
discussion,  and  which  is  apparently  fundamental. 

The  proofs  and  arguments  adduced  by  the  municipal 
lawyer  are  addressed  to  the  object  of  setting  in  motion  certain 
legal  machinery  which  will  result  in  a  judicial  judgment  to  be 
enforced  by  the  entire  power  of  the  state  over  litigants  sub- 
ject to  its  jurisdiction  and  control.  Before  him  lies  a  clear, 
certain,  definite  conclusion  of  the  controversy,  and  for  the 
finality  and  effectiveness  of  that  conclusion  the  sheriff  and 
the  policeman  stand  always  as  guarantors  in  the  last  resort. 

When  the  international  lawyer,  on  the  other  hand,  passes 
from  the  academic  discussion  in  which  he  has  no  one  to  con- 
vince but  himself,  and  proceeds  to  seek  the  establishment  of 
rights  or  the  redress  of  wrongs  in  a  concrete  case,  he  has  ap- 
parently no  objective  point  to  which  he  can  address  his 
proofs  or  arguments,  except  the  conscience  and  sense  of  jus- 
tice of  the  opposing  party  to  the  controversy.  In  only  rare, 
exceptional  and  peculiar  cases,  do  the  conclusions  of  the 
international  lawyer,  however  clearly  demonstrated,  have 
behind  them  the  compulsory  effect  of  possible  war.  In  the 
vast  majority  of  practical  questions  arising  under  the  rule  of 

25 


26  INTERNATIONAL  SUBJECTS 

international  law  there  does  not  appear  on  the  surface  to  be 
any  reason  why  either  party  should  abandon  its  own  con- 
tention or  yield  against  its  own  interest  to  the  arguments  of 
the  other  side.  The  action  of  each  party  in  yielding  or  refus- 
ing to  yield  to  the  arguments  of  the  other  appears  to  be 
entirely  dependent  upon  its  own  will  and  pleasure.  This 
apparent  absence  of  sanction  for  the  enforcement  of  the  rules 
of  international  law  has  led  great  authority  to  deny  that  those 
rules  are  entitled  to  be  called  law  at  all;  and  this  apparent 
hopelessness  of  finaHty  carries  to  the  mind  which  limits  its 
consideration  to  the  procedure  in  each  particular  case,  a 
certain  sense  of  futility  of  argument. 

Nevertheless,  all  the  foreign  oflSces  of  the  civilized  world 
are  continually  discussing  with  each  other  questions  of  in- 
ternational law,  both  public  and  private,  cheerfully  and 
hopefully  marshaling  facts,  furnishing  evidence,  presenting 
arguments,  and  building  up  records,  designed  to  show  that 
the  rules  of  international  law  require  such  and  such  things  to 
be  done  or  such  and  such  things  to  be  left  undone.  And  in 
countless  cases  nations  are  yielding  to  such  arguments  and 
shaping  their  conduct  against  their  own  apparent  interests  in 
the  particular  cases  under  discussion,  in  obedience  to  the 
rules  which  are  shown  to  be  applicable. 

Why  is  it  that  nations  are  thus  continually  yielding  to 
arguments  with  no  apparent  compulsion  behind  them,  and 
before  the  force  of  such  arguments  abandoning  purposes, 
modifying  conduct,  and  giving  redress  for  injuries  ?  A  care- 
ful consideration  of  this  question  seems  to  lead  to  the  con- 
clusion that  the  diflFerence  between  municipal  and  interna- 
tional law,  in  respect  of  the  existence  of  forces  compelling 
obedience,  is  more  apparent  than  real,  and  that  there  are 
sanctions  for  the  enforcement  of  international  law  no  less  real 
and  substantial  than  those  which  secure  obedience  to  munic- 
ipal law. 


SANCTION  OF  INTERNATIONAL  LAW  27 

It  is  a  mistake  to  assume  that  the  sanction  which  secm^es 
obedience  to  the  laws  of  the  state  consists  exclusively  or 
chiefly  of  the  pains  and  penalties  imposed  by  the  law  itself 
for  its  violation.  It  is  only  in  exceptional  cases  that  men 
refrain  from  crime  through  fear  of  fine  or  imprisonment.  In 
the  vast  majority  of  cases  men  refrain  from  criminal  conduct 
because  they  are  unwilling  to  incur  in  the  commimity  in 
which  they  live  the  public  condemnation  and  obloquy  which 
would  follow  a  repudiation  of  the  standard  of  conduct  pre- 
scribed by  that  community  for  its  members.  As  a  rule,  when 
the  law  is  broken  the  disgrace  which  follows  conviction  and 
punishment  is  more  terrible  than  the  actual  physical  effect  of 
imprisonment  or  deprivation  of  property.  Where  it  happens 
that  the  law  and  public  opinion  point  different  ways,  the 
latter  is  invariably  the  stronger.  I  have  seen  a  lad  grown  up 
among  New  York  toughs  break  down  and  weep  because  sent 
to  a  reformatory  instead  of  being  sentenced  to  a  state's 
prison  for  a  violation  of  law.  The  reformatory  meant  com- 
parative ease,  comfort,  and  opportunity  for  speedy  return  to 
entire  freedom;  the  state's  prison  would  have  meant  hard 
labor  and  long  and  severe  confinement.  Yet  in  his  com- 
munity of  habitual  criminals  a  term  in  state's  prison  was  a 
proof  of  manhood  and  a  title  to  distinction,  while  consign- 
ment to  a  reformatory  was  the  treatment  suited  to  immature 
boyhood.  He  preferred  the  punishment  of  manhood  with 
what  he  deemed  honor  to  the  opportunity  of  youth  with 
what  he  deemed  disgrace.  Not  only  is  the  effectiveness  of 
the  punishments  denounced  by  law  against  crime  derived 
chiefly  from  the  public  opinion  which  accompanies  them,  but 
those  punishments  themselves  are  but  one  form  of  the  expres- 
sion of  public  opinion.  Laws  are  capable  of  enforcement  only 
so  far  as  they  are  in  agreement  with  the  opinions  of  the  com- 
munity in  which  they  are  to  be  enforced.  As  opinion  changes 
old  laws  become  obsolete  and  new  standards  force  their  way 


m  INTERNATIONAL  SUBJECTS 

into  the  statute  books.  Laws  passed,  as  they  sometimes  are, 
in  advance  of  public  opinion  ordinarily  wait  for  their  en- 
forcement until  the  progress  of  opinion  has  reached  recogni- 
tion of  their  value.  The  force  of  law  is  in  the  public  opinion 
which  prescribes  it. 

The  impulse  of  conformity  to  the  standard  of  the  com- 
munity and  the  dread  of  its  condemnation  are  reenforced  by 
the  practical  considerations  which  determine  success  or 
failure  in  life.  Conformity  to  the  standard  of  business 
integrity  which  obtains  in  the  community  is  necessary  to 
business  success.  It  is  this  consideration  far  more  frequently 
than  the  thought  of  the  sheriff  with  a  writ  of  execution  that 
leads  men  to  pay  their  debts  and  to  keep  their  contracts. 
Social  esteem  and  standing,  power  and  high  place  in  the  pro- 
fessions, in  public  office,  in  all  associated  enterprise,  depend 
upon  conformity  to  the  standards  of  conduct  in  the  com- 
munity. Loss  of  these  is  the  most  terrible  penalty  society 
can  inflict.  It  is  only  for  the  occasional  nonconformist  that 
the  sheriff  and  policeman  are  kept  in  reserve;  and  it  is  only 
because  the  nonconformists  are  occasional  and  comparatively 
few  in  number  that  the  sheriff  and  the  policeman  can  have 
any  effect  at  all.  For  the  great  mass  of  mankind  laws  estab- 
lished by  civil  society  are  enforced  directly  by  the  power  of 
public  opinion,  having,  as  the  sanction  for  its  judgments,  the 
denial  of  nearly  everything  for  which  men  strive  in  life. 

The  rules  of  international  law  are  enforced  by  the  same 
kind  of  sanction,  less  certain  and  peremptory,  but  continually 
increasing  in  effectiveness  of  control.  "  A  decent  respect  to 
the  opinions  of  mankind  "  did  not  begin  or  end  among  nations 
with  the  American  Declaration  of  Independence;  but  it  is 
interesting  that  the  first  public  national  act  in  the  New 
World  should  be  an  appeal  to  that  imiversal  international 
public  opinion,  the  power  and  effectiveness  of  which  the  New 
World  has  done  so  much  to  promote.  ' 


SANCTION  OF  INTERNATIONAL  LAW  29 

In  former  times,  each  isolated  nation,  satisfied  with  its  own 
opinion  of  itself  and  indifferent  to  the  opinion  of  others,  sepa- 
rated from  all  others  by  mutual  ignorance  and  misjudgment, 
regarded  only  the  physical  power  of  other  nations.  Gibbon 
could  say  of  the  Byzantine  Empire:  "  Alone  in  the  universe, 
the  self-satisfied  pride  of  the  Greeks  was  not  disturbed  by 
the  comparison  of  foreign  merit;  and  it  is  no  wonder  if  they 
fainted  in  the  race,  since  they  had  neither  competitors  to 
urge  their  speed  nor  judges  to  crown  their  victory."  Now, 
however,  there  may  be  seen  plainly  the  effects  of  a  long- 
continued  process  which  is  breaking  down  the  isolation  of 
nations,  permeating  every  country  with  better  knowledge 
and  understanding  of  every  other  country,  spreading 
throughout  the  world  a  knowledge  of  each  government's 
conduct  to  serve  as  a  basis  for  criticism  and  judgment,  and 
gradually  creating  a  community  of  nations,  in  which  stand- 
ards of  conduct  are  being  established,  and  a  world-wide 
public  opinion  is  holding  nations  to  conformity  or  condemn- 
ing them  for  disregard  of  the  established  standards.  The 
improved  facilities  for  travel  and  transportation,  the  enor- 
mous increase  of  production  and  commerce,  the  revival  of 
colonization  and  the  growth  of  colonies  on  a  gigantic  scale, 
the  severance  of  the  laborer  from  the  soil,  accomplished  by 
cheap  steamship  and  railway  transportation  and  the  emigra- 
tion agent,  the  flow  and  return  of  millions  of  emigrants 
across  national  lines,  the  amazing  development  of  telegraphy 
and  of  the  press,  conveying  and  spreading  instant  informa- 
tion of  every  interesting  event  that  happens  in  regions  how- 
ever remote  —  all  have  played  their  part  in  this  change. 

Pari  passu  with  the  breaking  down  of  isolation,  that  makes 
a  common  public  opinion  possible,  the  building  up  of  stand- 
ards of  conduct  is  being  accomplished  by  the  formulation 
and  establishment  of  rules  that  are  being  gradually  taken  out 
of  the  domain  of  discussion  into  that  of  general  acceptance. 


80  INTERNATIONAL  SUBJECTS 

a  process  in  which  the  recent  conferences  at  The  Hague 
have  played  a  great  and  honorable  part.  There  is  no  civi- 
lized country  now  which  is  not  sensitive  to  this  general 
opinion,  none  that  is  willing  to  subject  itself  to  the  discredit 
of  standing  brutally  on  its  power  to  deny  to  other  countries 
the  benefit  of  recognized  rules  of  right  conduct.  The 
deference  shown  to  this  international  public  opinion  is  in 
due  proportion  to  a  nation's  greatness  and  advance  in  civili- 
zation. The  nearest  approach  to  defiance  will  be  found 
among  the  most  isolated  and  least  civilized  of  countries, 
whose  ignorance  of  the  world  prevents  the  effect  of  the 
world's  opinion;  and  in  every  such  country  internal  disorder, 
oppression,  poverty,  and  wretchedness  mark  the  penalties 
which  warn  mankind  that  the  laws  established  by  civilization 
for  the  guidance  of  national  conduct  cannot  be  ignored  with 
impunity. 

National  regard  for  international  opinion  is  not  caused  by 
amour  propre  alone  —  not  merely  by  desire  for  the  approval 
and  good  opinion  of  mankind.  Underlying  the  desire  for 
approval  and  the  aversion  to  general  condemnation  with 
nations  as  with  the  individual,  there  is  a  deep  sense  of  inter- 
est, based  partly  upon  the  knowledge  that  mankind  backs  its 
opinions  by  its  conduct  and  that  nonconformity  to  the  stand- 
ard of  nations  means  condemnation  and  isolation,  and  partly 
upon  the  knowledge  that  in  the  give  and  take  of  international 
affairs  it  is  better  for  every  nation  to  secure  the  protection  of 
the  law  by  complying  with  it  than  to  forfeit  the  law's  benefits 
by  ignoring  it. 

Beyond  all  this  there  is  a  consciousness  that  in  the  most 
important  affairs  of  nations,  in  their  political  status,  the 
success  of  their  undertakings  and  their  processes  of  develop- 
ment, there  is  an  indefinite  and  almost  mysterious  influence 
exercised  by  the  general  opinion  of  the  world  regarding  the 
nation's  character  and  conduct.    The  greatest  and  strongest 


SANCTION  OF  INTERNATIONAL  LAW  31 

governments  recognize  this  influence  and  act  with  reference 
to  it.  They  dread  the  moral  isolation  created  by  general 
adverse  opinion  and  the  unfriendly  feeling  that  accompanies 
it,  and  they  desire  general  approval  and  the  kindly  feeling 
that  goes  with  it. 

This  is  quite  independent  of  any  calculation  upon  a  physi- 
cal enforcement  of  the  opinion  of  others.  It  is  difficult  to 
say  just  why  such  opinion  is  of  importance,  because  it  is 
always  difficult  to  analyze  the  action  of  moral  forces;  but  it 
remains  true  and  is  universally  recognized  that  the  nation 
which  has  with  it  the  moral  force  of  the  world's  approval  is 
strong,  and  the  nation  which  rests  under  the  world's  condem- 
nation is  weak,  however  great  its  material  power. 

These  are  the  considerations  which  determine  the  course 
of  national  conduct  regarding  the  vast  majority  of  questions 
to  which  are  to  be  applied  the  rules  of  international  law.  The 
real  sanction  which  enforces  those  rules  is  the  injury  which 
inevitably  follows  nonconformity  to  public  opinion;  while, 
for  the  occasional  and  violent  or  persistent  law-breaker,  there 
always  stands  behind  discussion  the  ultimate  possibility  of 
war,  as  the  sheri£f  and  the  policeman  await  the  occasional 
and  comparatively  rare  violators  of  municipal  law. 

Of  course,  the  force  of  public  opinion  can  be  brought  to 
bear  only  upon  comparatively  simple  questions  and  clearly 
ascertained  and  understood  rights.  Upon  complicated  or 
doubtful  questions,  as  to  which  judgment  is  difficult,  each 
party  to  the  controversy  can  maintain  its  position  of  refusing 
to  yield  to  the  other's  arguments  without  incurring  public 
condemnation.  Upon  this  class  of  questions  the  growth  of 
arbitration  furnishes  a  new  and  additional  opportunity  for 
opinion  to  act;  because,  however  complicated  the  question  in 
dispute  may  be,  the  proposition  that  it  should  be  submitted 
to  an  impartial  tribunal  is  exceedingly  simple,  and  the  prop- 
osition that  the  award  of  such  a  tribunal  shall  be  complied 


8«  INTERNATIONAL  SUBJECTS 

with  is  equally  simple,  and  the  nation  which  refuses  to  sub- 
mit a  question  properly  the  subject  of  arbitration  naturally 
invites  condemnation. 

Manifestly,  this  power  of  international  public  opinion  is 
exercised  not  so  much  by  governments  as  by  the  people  of 
each  country  whose  opinions  are  interpreted  in  the  press  and 
determine  the  country's  attitude  towards  the  nation  whose 
conduct  is  under  consideration.  International  opinion  is  the 
consensus  of  individual  opinion  in  the  nations.  The  most 
certain  way  to  promote  obedience  to  the  law  of  nations  and 
to  substitute  the  power  of  opinion  for  the  power  of  armies 
and  navies  is,  on  the  one  hand,  to  foster  that  "  decent  respect 
to  the  opinions  of  mankind  "  which  found  place  in  the  great 
Declaration  of  1776,  and,  on  the  other  hand,  to  spread  among 
the  people  of  every  country  a  just  appreciation  of  interna- 
tional rights  and  duties  and  a  knowledge  of  the  principles  and 
rules  of  international  law  to  which  national  conduct  ought  to 
conform;  so  that  the  general  opinion,  whose  approval  or 
condemnation  supplies  the  sanction  for  the  law,  may  be 
sound  and  just  and  worthy  of  respect. 


THE  RELATIONS  BETWEEN  INTERNATIONAL 
TRIBUNALS  OF  ARBITRATION  AND  THE 
JURISDICTION  OF  NATIONAL  COURTS 

PRESIDENTIAL  ADDRESS  AT  THE  THIRD  ANNUAL  MEETING  OF 

THE  AMERICAN  SOCIETY  OF  INTERNATIONAL   LAW 

WASHINGTON,  APRIL  23,  1909 

THE  growing  tendency  towards  international  arbitration 
brings  into  special  consideration  and  importance  the  re- 
lation between  the  jurisdiction  of  national  courts  of  justice 
and  international  tribunals  of  arbitration. 

When  one  nation  urges  claims  in  behalf  of  its  citizens  upon 
the  government  of  another  nation  and  proposes  arbitration, 
how  far  does  that  other  nation's  respect  for  its  own  independ- 
ent sovereignty  and  for  the  integrity  of  its  own  judicial 
system  require  it  to  insist  that  the  claims  be  submitted  for 
final  decision  to  its  own  national  courts  ? 

The  true  basis  for  the  consideration  of  this  question  is  in 
the  nature  of  the  obligation  which  constrains  a  nation  to 
submit  questions  to  any  tribunal  whatever. 

That  there  is  no  legal  obligation  to  make  any  submission, 
that  is  to  say,  that  it  is  not  required  by  any  rule  imposed  by  a 
superior  power,  is  a  corollary  from  our  conception  of  sover- 
eignty. Sovereignty  involves  the  right  to  determine  one's 
own  actions  —  to  pay  or  not  to  pay,  to  redress  injury  or  not 
to  redress  it,  at  the  will  of  the  sovereign,  subject  only  to  the 
necessary  conditions  created  by  the  existence  of  other  equally 
independent  states.  So  far  as  questions  arise  out  of  contract, 
Alexander  Hamilton  states  the  strongest  view  of  national 
freedom  from  restraint  in  a  passage  often  quoted  in  recent 
years: 

S8 


84  INTERNATIONAL  SUBJECTS 

Contracts  between  a  nation  and  private  individuals  are  obligatory,  accord- 
ing to  the  conscience  of  the  sovereign,  and  may  not  be  the  object  of  com- 
pelling force.    They  confer  no  right  of  action  contrary  to  the  sovereign  will. 

So  far  as  questions  arise  out  of  alleged  wrongs  by  one  gov- 
ernment against  a  citizen  of  another,  the  sovereignty  of  one 
nation  is  merely  confronted  by  another  sovereignty,  which  is 
itself  equally  supreme  within  its  own  limits.  Wherever  the 
true  lines  are  to  be  drawn  between  two  mutually  exclusive 
sovereignties,  each  is  supreme  and  subject  to  no  compulsion 
on  its  own  side  of  the  line.  Wherever  there  is  infringement 
by  one  on  the  other  there  exists  the  right  of  adverse  action, 
which  involves  no  impeachment  of  independent  sovereignty, 
but  follows  necessarily  from  the  contact  of  two  independent 
powers.  Whatever  modifications  international  lawyers  urge 
to  the  broad  statement  of  doctrine  to  which  Doctor  Calvo 
has  given  his  name,  so  ably  enforced  by  his  successor,  Dr. 
Drago,  there  is  no  effective  dispute  regarding  the  foundation 
of  his  main  proposition,  regarding  the  essential  nature  of 
sovereignty. 

The  conditions  under  which  this  sovereign  power  is  exer- 
cised among  civilized  nations  do,  however,  impose  upon  it 
important  limitations,  just  as  the  conditions  under  which 
individual  liberty  is  enjoyed  in  a  free  civil  community  im- 
pose limitations  upon  individual  conduct  in  matters  not  at 
all  controlled  by  law.  Municipal  law  does  not,  in  general, 
undertake  to  compel  men  to  be  virtuous,  truthful,  sober,  fair, 
polite,  and  considerate  of  others.  Yet  the  existence  of  civil 
liberty  is  conditioned  upon  the  existence  of  a  community 
standard  of  conduct  quite  independent  of  legal  compulsion, 
and  extending  far  beyond  the  limits  touched  by  any  statute. 
The  member  of  a  community  who  chooses  to  use  his  indi- 
vidual liberty  to  violate  that  standard  conspicuously,  meets 
severe  punishment  in  the  loss  of  respect,  confidence,  and 
esteem,  and  in  the  consequences  of  that  loss.    Another  very 


ARBITRATION  AND  NATIONAL  COURTS         35 

effective  limitation  upon  conduct  is  the  knowledge  that  cer- 
tain courses  of  conduct  quite  within  one's  legal  rights  may- 
lead  some  other  man  to  use  his  individual  freedom,  to  do  one 
injury.  The  compulsion  which  such  considerations  produce 
upon  individual  action  is  no  more  an  infringement  upon 
individual  liberty  than  is  the  effect  caused  by  the  knowledge 
that  fire  will  bum  and  water  will  drown.  The  individual  in 
each  case  regulates  his  own  conduct  in  accordance  with  his 
own  will. 

The  assertion  of  independent  sovereignty  of  nations  is  but 
another  expression  of  the  individual  liberty  of  each  nation  in 
the  community  of  nations.  In  its  practical  application  it  is 
of  modem  acceptance,  superseding  the  old  idea  that  each 
nation,  tribe  or  group  of  people  under  whatever  chieftain, 
leader,  sovereign,  or  government,  was  entitled  to  hold  such 
territory  and  exercise  such  control  over  its  own  conduct,  as  it 
could  maintain  by  force  of  araas,  and  no  more. 

The  theory  of  independent  sovereignty,  entitled  to  be  re- 
spected by  all  mankind  without  regard  to  its  power  to  main- 
tain itself  by  force,  could  find  no  place  in  the  worid  except  in 
coincidence  with  a  standard  of  international  conduct  to 
which  the  nations  generally,  in  the  exercise  of  their  individual 
sovereignty,  conforaa,  each  without  compulsion  of  any  other 
power,  but  voluntarily. 

The  chief  principle  entering  into  this  standard  of  conduct 
is  that  every  sovereign  nation  is  willing  at  all  times  and 
under  all  circumstances  to  do  what  is  just.  That  is  the  uni- 
versal postulate  of  all  moderai  diplomatic  discussion.  No 
nation  would  for  a  moment  permit  its  own  conformity  to  the 
standard  in  this  respect,  to  be  questioned.  The  obligation 
which  this  willingness  implies  is  no  impeachment  of  sover- 
eignty. It  is  voluntarily  assumed  as  an  incident  to  the 
exercise  of  sovereignty  because  it  is  essential  to  a  continu- 
ance of  the  conditions  under  which  the  independence  of 


S6  INTERNATIONAL  SUBJECTS 

sovereignty  is  possible.  This  obligation  is  by  universal  con- 
sent interpreted  according  to  established  and  accepted  rules 
as  to  what  constitutes  justice  under  certain  known  and  fre- 
quently recurring  conditions;  and  these  accepted  rules  we  call 
international  law.  No  demand  can  ever  be  made  by  one 
nation  upon  another  to  give  redress  in  any  case  but  that  the 
demand  is  met  by  an  avowed  readiness  to  do  justice  in  that 
case,  and  upon  that  demand  in  accordance  with  the  rules  of 
international  law.  No  compulsion  upon  sovereignty  is 
needed  to  reach  that  result. 

The  only  question  that  can  arise  upon  such  a  demand  is 
the  question,  *'  What  is  just  in  this  case  ?  **  In  that  neces- 
sary condition  of  agreement  upon  the  underlying  principle  to 
be  followed,  a  common  duty  is  presented  to  both  nations 
to  ascertain  and  determine  what  is  just. 

It  is  not  usually  a  simple  or  easy  thing  to  determine  what 
is  just  as  between  a  nation  and  either  its  own  citizens  or  the 
citizens  of  other  nations.  Upon  one  conclusion  all  civiUzed 
nations  are  in  accord  —  that  the  executive  and  adminis- 
trative oflficers  of  government  cannot  be  depended  upon  to 
make  such  determinations.  Civilized  nations  uniformly  pro- 
vide machinery  for  judicial  decision  of  such  questions  so 
that  the  views  of  executive  and  administrative  officers  in 
rejecting  claims  may  be  reviewed  and  controlled.  The  grant 
of  jurisdiction  to  courts  or  the  creation  of  courts  to  exercise 
such  jurisdiction  is  no  disparagement  of  the  officers  whose 
views  of  what  is  just  are  thus  called  in  question.  Sovereigns 
and  presidents  and  ministers  and  department  officers  are  not 
insulted  by  such  provisions,  or  because  the  common  sense  of 
justice  recognizes  that  their  relation  to  the  questions  which 
arise  between  the  government  which  they  conduct,  and 
others,  is  such  that  they  cannot  well  be  impartial. 

The  whole  system  by  which  sovereign  states  permit  them- 
selves to  be  sued  in  courts  vested  with  jurisdiction  for  that 


ARBITRATION  AND  NATIONAL  COURTS         37 

purpose  is  in  recognition  of  tlie  fundamental  rule  of  right 
that  none  shall  be  a  judge  in  his  own  case. 

That  same  great  rule  cannot  be  ignored  when  the  question 
is  whether  the  decision  of  a  national  court  is  to  be  taken  as  a 
final  and  satisfactory  determination  of  what  is  just  in  an  in- 
ternational case,  to  which  the  judge's  own  country  is  a  party. 
For  after  all  judges  are  but  men.  They  are  part  of  the  gov- 
ernment that  is  called  in  question.  They  are  subject  to  the 
influence  of  their  environment.  They  cannot  always  escape 
all  the  influences  of  popular  feeling  and  prejudice  in  their  own 
communities.  The  political  fortunes  of  the  very  officials  who 
appointed  them  to  the  bench,  or  their  own  tenure  of  office 
may  perhaps  be  at  stake  upon  their  action.  They  cannot  help 
bringing  to  the  bench  strong  tendencies  and  predilections  in 
favor  of  their  own  countrymen's  ways  of  acting  and  think- 
ing. They  desire  the  approbation  of  their  fellow-citizens, 
and  in  cases  of  public  interest  it  may  be  much  harder  to 
decide  against  than  for,  their  own  country.  It  is  difficult  for 
a  foreigner  to  understand  and  avail  himself  of  their  modes  of 
reasoning,  their  rules  of  evidence  and  of  procedure,  and  the 
precedents  they  follow.  If  there  is  a  difference  of  languages  a 
stranger  is  at  a  great  disadvantage.  He  may  often  lose  his 
case  through  not  knowing  how  to  do  his  part  towards  main- 
taining it. 

There  are  many  circumstances  varying  in  different  coun- 
tries and  in  different  cases  which  tend  to  strengthen  or  to 
weaken  these  obstacles  to  a  satisfactory  attainment  of  justice. 
The  general  state  of  feeling  in  the  country  of  trial  towards 
the  country  of  the  complainant  and  its  effect  upon  the  atmo- 
sphere of  the  court  room,  that  every  exp>erienced  lawyer 
knows  to  be  so  important,  is  one  of  these  circumstances.  The 
relative  importance  of  the  case  in  proportion  to  the  resources 
of  the  country  —  whether  an  adverse  decision  would  make  a 
slight  or  a  great  difference  to  the  government  or  the  people,  is 


38  mTERNATIONAL  SUBJECTS 

another.  Whether  the  action  of  the  executive  has  been 
generally  discussed  and  has  assumed  political  importance  is 
another. 

Every  country  is  entitled  to  follow  its  own  judgment  and 
is  not  subject  to  criticism  for  following  its  own  judgment,  as 
to  the  degree  of  independence  it  shall  give  to  its  judiciary, 
yet  it  cannot  well  be  denied  that  with  human  nature  as 
it  is,  there  is  less  certainty  of  an  impartial  decision  from 
judges  removable  at  will  in  a  case  calling  in  question  the 
acts  of  the  appointing  and  removing  power,  than  from 
judges  whose  tenure  of  oflSce  is  not  dependent  upon  the 
executive.  The  decision  of  such  a  dependent  court  is  hable 
to  be  affected  by  the  same  infirmities  which  the  whole 
world  recognizes  as  making  the  determination  of  the  execu- 
tive itself  an  unsatisfactory  method  of  concluding  the  search 
for  justice. 

It  should  not  be  forgotten  that  it  is  not  only  desirable  to 
have  justice  done;  but  also  to  have  men  believe  that  justice 
is  done.  That  behef  is  important  to  respect  for  law  among 
the  people  within  each  nation  and  to  the  maintenance  and 
growth  of  respect  and  friendship  between  the  peoples  of 
different  nations. 

Of  course  there  are  many  cases  falling  naturally  into  the 
ordinary  routine  of  national  judicial  procedure  —  cases 
plainly  not  presenting  the  elements  of  prejudice  which  would 
prevent  reaching  justice  through  that  procedure.  Of  course 
there  are  many  great  international  questions  which  no  one 
would  ever  propose  to  lay  before  a  national  tribunal.  Be- 
tween these  two  extremes  there  is  a  wide  range  of  cases  in 
which  national  courts  may  exercise  jurisdiction,  but  to  which 
the  considerations  that  I  have  suggested  apply.  When  such 
cases  arise  the  international  question  is  not  one  of  compulsion 
or  derogation  from  sovereignty,  but  it  is:  How  shall  two 
nations  desiring  to  ascertain  what  is  the  truth  of  justice  in 


ARBITRATION  AND  NATIONAL  COURTS    39 

this  case  reach  a  decision  ?  By  what  procedure  and  before 
what  tribunal  can  that  end  best  be  attained  ? 

If  recourse  to  arbitration  is  a  reflection  upon  national 
courts,  the  people  of  the  United  States  have  been  strangely 
obtuse,  for  nowhere  in  the  world,  surely,  is  greater  honor 
paid  to  the  courts  of  justice,  yet  we  have  embodied  in  the 
fundamental  law  which  binds  our  states  together  a  recogni- 
tion of  the  liability  of  courts  to  be  affected  by  local  sentiment, 
prejudice,  and  pressure.  We  have  provided  in  the  third 
article  of  the  Constitution  of  the  United  States  that  in  con- 
troversies between  states  or  between  citizens  of  different 
states  the  determination  of  what  is  just  shall  not  be  confined 
to  the  courts  of  justice  of  either  state,  but  may  be  brought  in 
the  Federal  tribunals,  selected  and  empowered  by  the  repre- 
sentatives of  both  states  and  of  all  the  states  —  true  arbitral 
tribunals  in  the  method  of  their  creation  and  the  oflSce  they 
perform. 

Alexander  Hamilton  explains  this  provision  in  The  Feder- 
alist in  these  words: 

The  reasonableness  of  the  agency  of  the  National  courts  in  cases  in 
which  the  stat«  tribunals  cannot  be  supposed  to  be  impartial,  speaks  for 
itself.  No  man  ought  certainly  to  be  a  judge  in  his  own  cause,  or  in  any 
cause  in  respect  to  which  he  has  the  slightest  interest  or  bias.  This  prin- 
ciple has  no  inconsiderable  weight  in  designating  the  Federal  courts  as  the 
proper  tribunals  for  the  determination  of  controversies  between  different 
states  and  their  citizens.  And  it  ought  to  have  the  same  operation  in 
regard  to  some  cases  between  the  citizens  of  the  same  state.  Claims  to 
lands  imder  grants  of  different  states  founded  upon  adverse  pretension  of 
boundary  are  of  this  description.  The  courts  of  neither  of  the  granting 
states  could  be  expected  to  be  unbiased.  The  laws  may  have  even  pre- 
judged the  question  and  tied  the  courts  down  to  decisions  in  favor  of  the 
grant  of  the  state  to  which  they  belonged.  And  where  this  has  not  been 
done  it  would  be  natural  that  judges  as  men  should  feel  a  strong  predilec- 
tion to  the  claims  of  their  own  government. 

The  whole  world  owes  too  much  to  the  Constitution  of  the 
United  States  to  think  little  of  its  example.    Especially  the 


40  INTERNATIONAL  SUBJECTS 

American  nations,  which  have  drawn  from  that  great  instru- 
ment their  forms  of  government  and  the  spirit  of  their  free 
institutions,  must  regard  with  respect  the  lesson  which  it 
teaches. 

The  proud  independent  sovereign  commonwealths  like 
Virginia  and  Pennsylvania  and  New  York  and  Massachu- 
setts, which  formed  the  American  Union,  revered  their  judges. 
They  were  prepared  to  give,  and  did  give  to  their  courts  a 
degree  of  authority  over  them  and  over  their  executives 
and  legislatures  without  precedent  in  the  history  of  free 
government;  but  they  also  revered  justice;  they  prized 
peace  and  concord  and  friendship  and  brotherhood  between 
the  states  and  their  citizens.  A  century  and  a  half  of  free 
self-government  had  brought  to  them  the  lessons  and  the 
self-restraint  of  experience.  They  knew  the  limitations  of 
good  men  and  the  essential  conditions  of  doing  justice.  In 
that  great  cause  they  allowed  no  small  local  jealousies  to  bar 
the  way.  When  the  ever-recurring  question  arises  between 
submission  of  controversies  to  international  arbitration  on 
the  one  hand  and  insistence  upon  the  jurisdiction  of  national 
tribunals  on  the  other,  the  nations  who  look  to  the  f ramers  of 
the  American  Constitution  as  an  example  of  high  construc- 
tive statesmanship  and  wisdom,  should  not  fail  to  find  in 
this  judgment,  matter  to  arrest  their  attention  and  influence 
their  action. 

No  court  in  the  world  has  greater  power  and  independence 
and  honor  than  the  Supreme  Court,  established  under  the 
Constitution  of  the  United  States,  yet  our  Government,  by 
international  agreement,  has  submitted  to  international 
tribunals  many  cases  which  could  have  been,  and  many 
cases  which  already  had  been,  decided  by  that  great  court. 
For  example,  the  cases  of  the  Peterhof,  reported  in  Wallace's 
Reports,  Volume  5,  the  Dashing  Wave  (5  Wallace),  the 
Georgia  (7  Wallace),  the  Isabella   Thompson  (3  Wallace), 


ARBITRATION  AND  NATIONAL  COURTS    41 

the  Pearl  (5  Wallace),  the  Adela  (6  Wallace),  had  all  been 
decided  by  the  Supreme  Court,  and  they  were  re-submitted 
to  an  international  tribunal,  which  decided  them  in  the  same 
way  the  court  had  decided  them. 

The  cases  of  the  Hiawatha  (2  Black),  the  Circassian  (2 
Wallace);  the  Springbock  (5  Wallace),  the  Sir  William  Peel 
(5  Wallace),  the  Volant  (5  Wallace),  the  Science  (5  Wallace), 
had  all  been  decided  by  the  Supreme  Court,  and  they  were 
re-submitted  to  an  international  tribunal,  which  decided 
them  adversely  to  the  decisions  of  the  court,  and  the  United 
States  complied  with  the  decisions  of  the  arbitral  tribunal. 

It  is  true  that  the  rule  is  undisputed  that  where  there  has 
been  a  denial  of  justice  in  national  courts  their  decisions  are 
not  to  be  held  conclusive,  and  arbitration  or  other  further 
action  may  be  called  for.  Unfortunately  it  has  been  neces- 
sary often  in  the  past,  to  invoke  this  rule;  but  it  is  an  unsatis- 
factory rule  and  injurious  in  its  effects.  It  involves  an  indict- 
ment and  trial  of  the  judicial  system  under  which  the  denial 
of  justice  is  alleged  to  have  occurred.  It  involves  asper- 
sions upon  government,  imputations  upon  high  oflBcials,  in- 
citement to  anger  and  resentment,  and  tends  to  destroy 
rather  than  to  preserve  good  feeling  and  friendship  between 
the  nations  concerned. 

The  better  rule  would  be,  to  avoid  the  danger  of  denials  of 
justice,  and  to  prevent  the  belief  that  justice  has  not  been 
done,  which  must  always  possess  the  parties  defeated  in  a 
tribunal  suspected  of  partiality,  by  submitting  in  the  first 
instance  to  an  impartial  arbitral  tribunal  all  such  cases  as  are 
liable  to  be  affected  by  the  considerations  I  have  mentioned. 

And  the  reason  of  such  a  rule  would  require  that  when  such 
cases  have  been  decided  already  by  national  courts,  and  the 
impartial  justice  of  the  decision  is  seriously  questioned,  upon 
substantial  grounds,  they  should  be  re-submitted  to  an  arbi- 
tral tribimal,  not  for  proof  that  justice  has  been  denied,  but 


42  INTERNATIONAL  SUBJECTS 

for  rehearing  upon  the  merits  because  self-respect  and  intelli- 
gent self-interest  forbid  a  nation  to  shelter  itself  behind 
decisions  of  its  own  courts  that  rest  under  the  imputation  of 
partiality,  or  to  be  content  with  any  but  the  best  means  and 
the  most  sincere  effort  to  leam  what  is  just  in  order  that  the 
nation  may  do  what  is  just. 


THE  BASIS  OF  PROTECTION  TO  CITIZENS 
RESIDING  ABROAD 

PRESIDENTIAL  ADDRESS  AT  THE  FOURTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  28,   1910 

I  SHALL  ask  you  to  listen  for  a  few  minutes  to  some  re- 
marks regarding  the  protection  which  a  nation  should 
extend  over  its  citizens  in  foreign  countries.  I  do  not  select 
this  topic  because  I  have  anything  new  to  say  about  it,  or 
because  there  is  any  real  controversy  among  international 
lawyers  concerning  the  principles  involved  or  concerning  the 
fundamental  rules  to  be  applied,  but  because  there  is  a  con- 
siderable degree  of  public  misunderstanding  about  the  sub- 
ject, and  situations  are  continually  arising  in  which  a  failure 
of  the  public  in  one  country  or  another  to  appreciate  justly 
the  extent  and  nature  of  international  obligation  leads  to 
resentment  and  unfriendly  feeling  that  ought  to  be  avoided. 

The  subject  has  grown  in  importance  very  rapidly  during 
recent  years.  The  world  policy  of  commercial  exclusiveness 
prevailing  in  the  early  part  of  the  last  century  has  practically 
disappeared.  The  political  relations  on  the  one  hand  and  the 
commercial  and  industrial  relations  on  the  other  hand  of  dif- 
ferent parts  of  the  earth  to  each  other  are  quite  separate  and 
distinct.  It  is  not  uncommon  to  find  that  a  nation  has  com- 
mercial colonies  which  bear  no  political  relation  to  her  what- 
ever, and  political  colonies  which  are  industrially  allied  most 
closely  to  other  countries. 

The  increase  in  facilities  for  transportation  and  communi- 
cation —  steamships  and  railroads  and  telegraphs  and 
telephones  —  has  set  in  motion  vast  armies  of  travelers  who 

43 


44  INTERNATIONAL  SUBJECTS 

are  making  their  way  into  the  most  remote  comers  of  foreign 
countries  to  a  degree  never  before  known. 

The  general  diffusion  of  intelligence  among  the  people  of  all 
civilized,  and  to  a  considerable  degree  of  semi-civilized, 
countries,  has  carried  to  the  great  mass  of  the  people  —  the 
working  people  of  the  world  —  a  knowledge  of  the  affairs  and 
the  conditions  of  life  in  other  lands;  and  this,  with  the  cheap- 
ness and  ease  of  transportation,  has  led  to  enormous  emigra- 
tion and  shifting  of  population.    One  of  the  salient  features  of 
modem  political  development  has  been  the  severance  of  the 
people  from  the  soil  of  their  native  countries.    The  peasant, 
who  was  formerly  a  fixture  in  his  native  valley,  unable  to 
conceive  of  himself  as  a  part  of  any  life  beyond  the  circle  of 
the  siuTounding  hills,  now  moves  freely  to  and  fro,  not  only 
from  one  community  to  another  but  from  one  country  to 
another.     Labor  is  becoming  fluid,  and,  like  money,  flows 
towards  the  best  market  without  paying  much  attention  to 
political  lines.    The  doctrine  of  inalienable  allegiance  so  in- 
consistent with  the  natural  course  of  development  of  the  new 
world,  and  so  long  and  so  stoutly  contested  by  the  United 
States,  has  been  almost  universally  abandoned.    It  is  mani- 
fest that  the  few  nations  which  have  not  given  their  assent  to 
the  right  of  their  citizens  to  change  their  citizenship  and 
allegiance  as  they  change  their  residence  will  not  long  main- 
tain their  position.    This  change  has  led  to  a  new  class  of 
citizens  traveling  or  residing  abroad;  that  is,  the  naturalized 
citizen,  who,  returning  to  his  country  of  origin  or  going  to 
stiU  other  countries,  claims  the  protection  not  of  his  native 
but  of  his  adopted  government.    Among  the  great  throngs  of 
emigrants  to  other  countries  may  be  distinguished  two  some- 
what different  classes  —  one  composed  of  those  who  have 
transferred  their  substantial  interests  to  the  new  country  and 
are  building  up  homes  for  themselves;  the  other  class  com- 
posed of  those  who  still  continue  their  principal  interests  in 


jL 


CITIZENS  RESIDING  ABROAD  45 

the  country  from  which  they  have  come  and  under  their  new 
conditions  are  engaged  in  accumulating  means  for  the  better 
support  of  the  families  and  friends  they  have  left  behind 
them,  or  for  their  own  future  support  after  the  return  to 
which  they  look  forward. 

The  great  accumulation  of  capital  in  the  money  centers  of 
the  world,  far  in  excess  of  the  opportimities  for  home  invest- 
ment, has  led  to  a  great  increase  of  international  investment 
extending  over  the  entire  surface  of  the  earth,  and  these 
investments  have  naturally  been  followed  by  citizens  from 
the  investing  countries  prosecuting  and  caring  for  the  enter- 
prises in  the  other  countries  where  their  investments  are 
made.  For  example,  it  was  estimated  three  or  four  years 
ago  that  within  the  preceding  ten  years  over  seven  hundred 
millions  of  capital  had  gone  from  the  United  States  alone 
into  Mexico  for  investment;  and  this  capital  had  been  fol- 
lowed by  more  than  forty  thousand  citizens  of  the  United 
States  who  had  become  resident  in  Mexico.  This  same 
process  has  been  going  on  all  over  the  world. 

All  these  forms  of  peaceful  interpenetration  among  the 
nations  of  the  earth  naturally  contribute  their  instances  of 
citizens  justly  or  unjustly  dissatisfied  with  the  treatment 
they  receive  in  foreign  countries  and  calling  upon  their  own 
governments  for  protection. 

In  two  directions  the  process  has  gone  so  far  as  to  justify 
and  receive  limitation.  On  the  one  hand,  there  has  come  to 
be  a  recognition  of  the  essential  difference  between  emigra- 
tion en  masse,  by  means  of  which  the  people  of  one  country 
may  virtually  take  possession  of  considerable  portions  of  the 
territory  of  another  country  to  the  practical  exclusion  of  its 
own  citizens,  and  the  ordinary  travel  and  residence  upon 
individual  initiative  to  which  the  usual  conventions  concern- 
ing reciprocal  rights  of  travel  and  residence  relate.  The 
occasion  for  considering  this  difference  naturally  depends 


46  INTERNATIONAL  SUBJECTS 

very  much  upon  the  capacity  of  the  emigrants  for  assimila- 
tion with  the  people  of  the  country  to  which  they  go.  The 
wider  the  differences  in  race,  customs,  traditions,  and  stand- 
ards of  living,  the  less  is  the  probability  of  assimilation  and 
the  greater  the  certainty  that  emigration  of  large  bodies  of 
people  will  assume  the  character  of  peaceful  invasion  and 
occupation  of  territory.  After  many  years  of  discussion 
China  has  come  to  recognize  the  existence  of  such  a  distinc- 
tion in  respect  of  Chinese  emigration  to  North  America! 
Japan  has  recognized  it  from  the  first,  and  there  has  never 
been  any  question  between  the  governments  of  Japan  and  the 
United  States  upon  that  subject. 

On  the  other  hand,  the  United  States  has  itself  put  a  limit 
upon  the  practice,  which  had  already  reached  the  point  of 
serious  abuse,  of  permitting  the  natives  of  other  countries  to 
become  naturalized  here  for  the  purpose  of  returning  to  their 
homes  or  seeking  a  residence  in  third  countries  with  the 
benefit  of  American  protection.  Several  years  ago  it  was 
estimated  that  there  were  in  Turkey  seven  or  eight  thousand 
natives  of  Turkey  who  had  in  one  way  and  another  secured 
naturalization  in  the  United  States  and  had  gone  home  to 
live  with  the  advantage  over  their  friends  and  neighbors  of 
being  able  to  call  upon  the  American  embassy  for  assistance 
whenever  they  were  not  satisfied  with  the  treatment  they 
received  from  their  own  government.  At  the  time  of  the 
troubles  in  Morocco,  which  were  disposed  of  at  the  Algeciras 
Conference,  an  examination  of  the  Kst  of  American  citizens 
in  Morocco  showed  that  one  half  of  the  list  consisted  of 
natives  of  Morocco  who  had  been  naturalized  in  the  United 
States  and  had  left  this  country  and  gone  back  to  Morocco 
within  three  months  after  obtaining  their  naturalization 
papers.  We  have  now  adopted  a  rule,  which  has  been  em- 
bodied in  a  number  of  treaties  and  in  the  Act  of  Congress 
of  March  2,  1907,  fpr  the  purpose  of  checking  this  abuse. 


CITIZENS  RESIDING  ABROAD  47 

The  new  rule  is,  that  when  a  naturalized  citizen  leaves  this 
country  instead  of  residing  in  it,  two  years'  residence  in 
the  country  of  his  origin  or  five  years'  residence  in  any  other 
country  creates  a  presumption  of  renunciation  of  the  citizen- 
ship which  he  had  acquired  here,  and  unless  that  presumption 
is  rebutted  by  showing  some  special  and  temporary  reason 
for  the  change  of  residence,  the  obligation  of  protection  by 
the  United  States  is  deemed  to  be  ended. 

I  have  dwelt  upon  the  magnitude  and  diversity  of  the 
causes  which  are  resulting  in  the  presence  in  each  civilized 
country  of  great  numbers  of  citizens  of  other  countries,  be- 
cause conditions  so  universal  plainly  must  be  dealt  with 
pursuant  to  fixed,  definite,  certain,  and  universally  recog- 
nized rules  of  international  action. 

The  simplest  form  of  protection  is  that  exercised  by  strong 
countries  whose  citizens  are  found  in  parts  of  the  earth  under 
the  jurisdiction  of  governments  whose  control  is  inadequate 
for  the  preservation  of  order.  Under  such  circumstances  in 
times  of  special  disturbance  it  is  an  international  custom  for 
the  countries  having  the  power  to  intervene  directly  for  the 
protection  of  their  own  citizens,  as  in  the  case  of  the  Boxer 
rebellion  in  China,  when  substantially  all  the  Western 
powers  were  concerned  in  the  march  to  Peking  and  the  for- 
cible capture  of  that  city  for  the  protection  of  the  legations. 
On  a  smaller  scale,  armed  forces  have  often  been  landed  from 
men-of-war  for  the  protection  of  the  life  and  property  of 
their  national  citizens  during  revolutionary  disturbances,  as, 
for  example,  in  Central  America  and  the  West  Indies.  Such 
a  course  is  undoubtedly  often  necessary,  but  it  is  always  an 
impeachment  of  the  effective  sovereignty  of  the  government 
in  whose  territory  the  armed  demonstration  occurs,  and  it 
can  be  justified  only  by  unquestionable  facts  which  leave  no 
practical  doubt  of  the  incapacity  of  the  government  of  the 
country  to  perform  its  international  duty  of  protection.    It 


48  INTERNATIONAL  SUBJECTS 

leads  to  many  abuses,  especially  in  the  conduct  of  those 
nationals  who,  feeling  that  they  are  backed  up  by  a  navy, 
act  as  if  they  were  superior  to  the  laws  of  the  country  in 
which  they  are  residing  and  pennit  their  sense  of  immunity 
to  betray  them  into  arrogant  and  offensive  disrespect. 

Similar  in  principle  to  the  method  of  direct  protection 
which  I  have  mentioned  is  the  practice  of  exercising  extra- 
territorial jurisdiction,  under  conventional  arrangements,  in 
countries  whose  methods  of  administering  justice  are  very 
greatly  at  variance  with  the  methods  to  which  the  people  of 
the  great  body  of  civilized  states  are  accustomed,  such,  for 
example,  as  China  and  Turkey. 

Between  countries  which  maintain  effective  government 
for  the  maintenance  of  order  within  their  territories,  the 
protection  of  one  country  for  its  nationals  in  foreign  terri- 
tory can  be  exercised  only  by  calling  upon  the  government  of 
the  other  country  for  the  performance  of  its  international 
duty,  and  the  measure  of  one  country's  international  obhga- 
tion  is  the  measure  of  the  other  country's  right.  The  rule  of 
obhgation  is  perfectly  distinct  and  settled.  Each  country  is 
bound  to  give  to  the  nationals  of  another  country  in  its  terri- 
tory the  benefit  of  the  same  laws,  the  same  administration, 
the  same  protection  and  the  same  redress  for  injury  which  it 
gives  to  its  own  citizens,  and  neither  more  nor  less;  provided 
the  protection  which  the  country  gives  to  its  own  citizens 
conforms  to  the  established  standard  of  civilization. 

There  is  a  standard  of  justice,  very  simple,  very  funda- 
mental, and  of  such  general  acceptance  by  all  civilized  coun- 
tries as  to  form  a  part  of  the  international  law  of  the  world. 
The  condition  upon  which  any  coimtry  is  entitled  to  measure 
the  justice  due  from  it  to  an  alien  by  the  justice  which  it 
accords  to  its  own  citizens  is  that  its  system  of  law  and  ad- 
ministration shall  conform  to  this  general  standard.  If  any 
country's  system  of  law  and  administration  does  not  con- 


CITIZENS  RESIDING  ABROAD  49 

form  to  that  standard,  although  the  people  of  the  country 
may  be  content  or  compelled  to  live  under  it,  no  other  coun- 
try can  be  compelled  to  accept  it  as  furnishing  a  satisfac- 
tory measure  of  treatment  to  its  citizens.  In  the  famous 
Don  Pacifico  case,  Lord  Palmerston  said,  in  the  House  of 
Commons: 

If  our  subjects  abroad  have  complaints  against  individuals,  or  against 
the  government  of  a  foreign  country,  if  the  courts  of  law  of  that  country 
can  afford  them  redress,  then,  no  doubt,  to  those  courts  of  justice  the 
British  subject  ought  in  the  first  instance  to  apply;  and  it  is  only  on  a 
denial  of  justice,  or  upon  decisions  manifestly  unjust,  that  the  British 
Government  should  be  called  upon  to  interfere.  But  there  may  be  cases 
in  which  no  confidence  can  be  placed  in  the  tribimals,  those  tribunals  being, 
from  their  composition  and  nature,  not  of  a  character  to  inspire  any  hope 
of  obtaining  justice  from  them.  It  has  been  said :  *  We  do  not  apply  this 
rule  to  countries  whose  governments  are  arbitrary  or  desjx)tic,  because 
there  the  tribunals  are  under  the  control  of  the  government,  and  justice 
cannot  be  had;  and,  moreover,  it  is  not  meant  to  be  applied  to  nominally 
constitutional  governments,  where  the  tribunals  are  corrupt.' 

I  say,  then,  that  our  doctrine  is,  that,  in  the  first  instance,  redress  should 
be  sought  from  the  law  courts  of  the  country;  but  that  in  cases  where  re- 
dress cannot  be  so  had  —  and  those  cases  are  many  —  to  confine  a  British 
subject  to  that  remedy  only,  would  be  to  deprive  him  of  the  protection 
which  he  is  entitled  to  receive.  .  .  . 

We  ^hall  be  told,  perhaps,  as  we  have  already  been  told,  that  if  the 
people  of  the  country  are  liable  to  have  heavy  stones  placed  upon  their 
breasts,  and  police  oflScers  to  dance  upon  them;  if  they  are  liable  to  have 
their  heads  tied  to  their  knees,  and  to  be  left  for  horn's  in  that  state;  or  to 
be  swung  like  a  pendulum,  and  to  be  bastinadoed  as  they  swing,  foreigners 
have  no  right  to  be  better  treated  than  the  natives,  and  have  no  business 
to  complain  if  the  same  things  are  practised  upon  them.  We  may  be  told 
this,  but  that  is  not  my  opinion,  nor  do  I  believe  it  is  the  opinion  of  any 
reasonable  man. 

Nations  to  which  such  observations  apply  must  be  content 
to  stand  in  an  intermediate  position  between  those  incapable 
of  maintaining  order,  and  those  which  conform  fully  to  the 
international  standard.  With  this  understanding  there  are 
no  exceptions  to  the  rule  and  no  variations  from  it.  There 
may  be  circumstances  at  particular  times  and  places  such 


50  INTERNATIONAL  SUBJECTS 

that  the  application  of  the  rule  calls  for  action  regarding 
foreign  citizens  quite  unlike  the  action  ordinarily  taken  for 
the  benefit  of  native  citizens,  but  it  is  always  action  which 
would  be  equally  required  in  case  a  native  citizen  were  placed 
under  the  same  circumstances  of  exigency.  It  is  plain  that 
no  other  rule  is  practicable.  Upon  any  other  basis  every 
country  would  be  obliged  to  have  two  systems  of  law  and 
administration  and  police  regulations,  and  the  existence  of 
great  numbers  of  foreigners  in  a  country  would  be  an  intoler- 
able burden.  The  standard  to  which  the  rule  appHes  is  a 
standard  of  right,  and  not  necessarily  of  actual  performance. 
The  foreigner  is  entitled  to  have  the  protection  and  redress 
which  the  citizen  is  entitled  to  have,  and  the  fact  that  the 
citizen  may  not  have  insisted  upon  his  rights,  and  may  be 
content  with  lax  administration  which  fails  to  secure  them  to 
him,  furnishes  no  reason  why  the  foreigner  should  not  insist 
upon  them  and  no  excuse  for  denying  them  to  him.  It  is  a 
practical  standard  and  has  regard  always  to  the  possibihties 
of  government  under  existing  conditions.  The  rights  of  the 
foreigner  vary  as  the  rights  of  the  citizen  vary  between  ordi- 
nary and  peaceful  times  and  times  of  disturbance  and  tumult; 
between  settled  and  ordinary  communities  and  frontier 
regions  and  mining  camps. 

The  diplomatic  history  of  this  country  presents  a  long  and 
painful  series  of  outrages  on  foreigners  by  mob  violence. 
These  have  uniformly  been  the  subject  of  diplomatic  claims 
and  long-continued  discussion,  and  ultimately  oh  the  pay- 
ment of  indemnity.  An  examination  of  these  discussions  will 
show  that  in  every  case  the  indemnity  was  in  fact  paid  be- 
cause the  United  States  had  not  done  in  the  particular  case 
what  it  would  have  done  for  its  own  citizens  if  our  laws  had 
been  administered  as  our  citizens  were  entitled  to  have  them 
administered.  Of  course,  no  government  can  guarantee  all 
the  inhabitants  of  its  territory  against  injury  inflicted  by 


CITIZENS  RESIDING  ABROAD  51 

individual  crime  and  no  government  can  guarantee  the  cer- 
tain punishment  of  crime;  but  every  citizen  is  entitled  to 
have  poHce  protection  accorded  to  him  commensurate  with 
the  exigency  under  which  he  may  be  placed.  If  he  is  able  to 
give  notice  to  the  government  of  intended  violence  against 
him  he  is  entitled  to  have  due  measures  taken  for  its  preven- 
tion, and  he  is  entitled  always  to  have  such  vigorous  prose- 
cution and  punishment  of  those  who  are  guilty  of  criminal 
violation  of  his  rights  that  it  will  be  apparent  to  all  the  world 
that  he  cannot  be  misused  with  impunity  and  that  he  will 
have  the  benefit  of  the  deterrent  effect  of  punishment. 

It  is  a  distressing  fact  that  in  one  important  respect  the 
Government  of  the  United  States  fails  to  comply  with  its 
international  obligation  in  giving  the  same  degree  of  protec- 
tion and  opportunity  for  redress  of  wrong  to  foreigners  that  it 
gives  to  its  own  citizens.  The  difficulties  which  beset  aliens 
in  a  strange  land  are  ordinarily  local  difficulties.  The  govern- 
ment and  the  people  of  the  foreign  country  are  usually  quite 
ready,  in  a  broad  and  abstract  way,  to  accord  to  foreigners 
the  fullest  toleration,  equality  before  the  law,  and  protection. 
But  the  people  of  the  particular  community  with  whom  the 
ahen  comes  in  contact  too  often  fail  of  understanding  and 
sympathy.  They  misunderstand  and  resent  the  foreign 
customs  with  which  they  are  unfamiliar.  They  are  aroused 
to  anger  by  the  competition  to  which  the  foreigner  subjects 
them.  Immediate  contact  is  too  apt  at  first  to  breed  dislike 
and  intolerance  towards  what  Bret  Harte  describes  as  the 
**  defective  moral  quality  of  being  a  foreigner."  Our  Con- 
stitution recognizes  this  natural  and  often  inevitable  preju- 
dice by  giving  to  our  national  courts  jurisdiction  over  all 
civil  suits  between  aliens  and  citizens  of  the  United  States. 
We  fail  to  recognize  the  same  conditions,  however,  in  respect 
of  the  security  of  the  persons  and  property  of  aliens.  The 
Revised  Statutes  of  the  United  States  aim  to  protect  citizens 


5«  INTERNATIONAL  SUBJECTS 

of  the  United  States  against  local  prejudice  and  injury,  by 
providing  in  Section  5508: 

If  two  or  more  p>ersons  conspire  to  injure,  oppress,  threaten,  or  intimi- 
date any  citizen  in  the  free  exercise  or  enjoyment  of  any  right  or  privilege 
secm-ed  to  him  by  the  Constitution  or  laws  of  the  United  States,  or  be- 
cause of  his  having  so  exercised  the  same;  or  if  two  or  more  p)ersons  go  in 
disguise  on  the  highway,  or  on  the  premises  of  another,  with  intent  to  pre- 
vent or  hinder  his  free  exercise  or  enjoyment  of  any  right  or  privilege  so 
secured,  they  shall  be  fined  not  more  than  five  thousand  dollars  and  impris- 
oned not  more  than  ten  years;  and  shall,  moreover,  be  thereafter  ineUgible 
to  any  office,  or  place  of  honor,  profit,  or  trust  created  by  the  Constitution 
or  laws  of  the  United  States, 

This  provision,  however,  does  not  apply  to  aliens,  and  no 
similar  provision  applies  to  them.  Accordingly,  defenseless 
Chinamen  were  mobbed  at  Denver  in  1880,  and  at  Rock 
Springs,  Wyoming,  in  1885;  Italians  were  lynched  in  New 
Orleans  in  1891,  and  again  at  Rouse,  Colorado,  in  1895;  and 
Mexicans  were  lynched  at  Yreka,  California,  in  1895;  and 
ItaHans  at  Tallulah,  Louisiana,  in  1899,  and  again  at  Erwin, 
Mississippi,  in  1901.  Our  Government  was  practically  de- 
fenseless against  claims  for  indemnity  because  of  our  failure  to 
extend  over  these  aliens  the  same  protection  that  we  extend 
over  our  own  citizens,  and  the  final  result  of  long  diplomatic 
correspondence  in  each  case  was  the  payment  of  indemnity 
for  the  real  reason  that  we  had  not  performed  our  interna- 
tional duty.  In  these  discussions  our  State  Department 
from  time  to  time  undertook  to  shelter  itself  behind  the  dis- 
tribution of  power  in  our  constitutional  systenl,  and  the  fact 
that  there  was  no  law  of  the  United  States  providing  for  any 
redress  except  at  the  hands  of  the  State  officials  in  the  very 
locality  where  prejudice  led  to  the  injury.  Yet  when  an 
American  citizen  was  injured  by  a  mob  in  Brazil  in  1875,  the 
dispatch  of  Secretary  Fish  to  the  American  Minister  at  Rio 
de  Janeiro  said: 

You  represent  that  the  facts  as  set  forth  in  the  memorial  of  the  claimant 
are  admitted  by  that  Government,  which,  however,  denies  its  accounta- 


CITIZENS  RESIDING  ABROAD  53 

bility  and  says  that  the  province  where  the  injury  to  Mr.  Smyth  took  place 
is  alone  answerable.  Supposing,  however,  the  case  to  be  a  proper  one  for 
the  interposition  of  this  Government,  the  reference  of  the  claimant  to  the 
authorities  of  the  province  for  redress  will  not  be  acquiesced  in.  Those 
authorities  caxmot  be  officially  known  to  this  Government.  It  is  the  Im- 
perial Government  at  Rio  de  Janeiro  only  which  is  accountable  to  this 
Government  for  any  injury  to  the  person  or  property  of  a  citizen  of  the 
United  States  committed  by  the  authorities  of  a  province.  It  is  with  that 
Government  alone  that  we  hold  diplomatic  intercourse.  The  same  rule 
would  be  applicable  to  the  case  of  a  Brazilian  subject  who,  in  this  country, 
might  be  wronged  by  the  authorities  of  a  State. 

And  President  Harrison,  in  his  message  to  Congress  of 

December  9,  1891,  relating  to  the  lynching  of  Italians  at 

New  Orleans  in  that  year,  said: 

Some  suggestions  growing  out  of  this  imhappy  incident  are  worthy  the 
attention  of  Congress.  It  would,  I  beUeve,  be  entirely  competent  for  Con- 
gress to  make  offenses  against  the  treaty  rights  of  foreigners  domiciled  in 
the  United  States  cognizable  in  the  Federal  Courts.  This  has  not,  how- 
ever, been  done,  and  the  Federal  officers  and  Courts  have  no  power  in  such 
cases  to  intervene  either  for  the  protection  of  a  foreign  citizen  or  for  the 
pimishment  of  his  slayers.  It  seems  to  me  to  follow,  in  this  state  of  the 
law,  that  the  officers  of  the  State  charged  with  police  and  judicial  powers 
in  such  cases  must,  in  the  consideration  of  international  questions  growing 
out  of  such  incidents,  be  regarded  in  such  sense  as  Federal  agents  as  to 
make  this  Government  answerable  for  their  acts  in  cases  where  it  would  be 
answerable  if  the  United  States  had  used  its  constitutional  power  to  define 
and  punish  crimes  against  treaty  rights. 

It  is  to  be  hoped  that  our  Government  will  never  again 
attempt  to  shelter  itself  from  responsibility  for  the  enforce- 
ment of  its  treaty  obligations  to  protect  foreigners  by  alleg- 
ing its  own  failure  to  enact  the  laws  necessary  to  the  discharge 
of  those  obUgations. 

The  most  frequent  occasions  of  appeal  by  citizens  for  pro- 
tection in  other  countries  arise  upon  the  assertion  that  justice 
has  been  denied  them  in  the  courts,  and  this  appears,  unfor- 
tunately, to  be  a  frequent  occurrence.  The  justification  of 
such  complaints  does  not  rest  upon  any  obligation  of  another 
country  to  furnish  any  better  or  different  judicial  relief  or 


54  INTERNATIONAL  SUBJECTS 

procedure  to  foreigners  than  is  provided  for  the  citizens  of  the 
country  itself,  but  it  results  from  the  fact  that  in  many  coun- 
tries the  courts  are  not  independent;  the  judges  are  remov- 
able at  will;  they  are  not  superior,  as  they  ought  to  be,  to 
local  prejudices  and  passions,  and  their  organization  does  not 
afford  to  the  foreigner  the  same  degree  of  impartiality  which 
is  accorded  to  citizens  of  the  country,  or  which  is  required  by 
the  common  standard  of  justice  obtaining  throughout  the 
civilized  world.  When  justice  is  denied  for  such  reasons 
there  is  a  failure  on  the  part  of  the  government  to  perform 
its  international  duty,  and  a  right  on  the  part  of  the  govern- 
ment whose  citizen  has  failed  to  secure  justice  to  demand 
reparation. 

A  large  proportion  of  such  complaints  are,  however,  with- 
out just  foundation.  Citizens  abroad  are  too  apt  to  complain 
that  justice  has  been  denied  them  whenever  they  are  beaten 
in  a  litigation,  forgetting  that,  as  a  rule,  they  would  complain 
just  the  same  if  they  were  beaten  in  a  litigation  in  the  courts 
of  their  own  country.  When  a  man  goes  into  a  foreign  coun- 
try to  reside  or  to  trade  he  submits  himself,  his  rights,  and 
interests  to  the  jurisdiction  of  the  courts  of  that  country.  He 
will  naturally  be  at  a  disadvantage  in  litigation  against  citi- 
zens of  the  country.  He  is  less  familiar  than  they  with  the 
laws,  the  ways  of  doing  business,  the  habits  of  thought  and 
action,  the  methods  of  procedure,  the  local  customs  and  pre- 
judices, and  often  with  the  language  in  whidh  the  business  is 
done  and  the  proceedings  carried  on.  It  is  not  the  duty  of  a 
foreign  country  in  which  such  a  litigant  finds  himself  to 
make  up  to  him  for  these  disadvantages  under  which  he 
labors.  They  are  disadvantages  inseparable  from  his  pros- 
ecuting his  business  in  a  strange  land.  A  large  part  of  the 
dissatisfaction  which  aliens  feel  and  express  regarding  their 
treatment  by  foreign  tribunals  results  from  these  causes, 
which  furnish  no  just  ground  for  international  complaint.    It 


CITIZENS  RESIDING  ABROAD  55 

is  very  desirable  that  people  who  go  into  other  countries  shall 
realize  that  they  are  not  entitled  to  have  the  laws  and  police 
regulations  and  methods  of  judicial  procedure  and  customs  of 
business  made  over  to  suit  them,  or  to  have  any  other  or 
different  treatment  than  that  which  is  accorded  to  the 
citizens  of  the  country  into  which  they  have  gone;  so  long 
as  the  government  of  that  country  maintains,  according  to 
its  own  ideas  and  for  the  benefit  of  its  own  citizens,  a  sys- 
tem of  law  and  administration  which  does  not  violate  the 
common  standard  of  justice  that  is  a  part  of  international 
law;  and  so  long  as,  in  conformity  with  that  standard,  the 
same  rights,  the  same  protection,  and  the  same  means  of 
redress  for  wrong  are  given  to  them  as  are  given  to  the  citi- 
zens of  the  country  where  they  are.  On  the  other  hand, 
every  one  who  goes  into  a  foreign  country  is  bound  to  obey 
its  laws,  and  if  he  disobeys  them  he  is  not  entitled  to  be  pro- 
tected against  punishment  under  those  laws.  It  follows, 
also,  that  one  in  a  foreign  country  must  submit  to  the  incon- 
venience of  proceedings  that  may  be  brought  in  accordance 
with  law  upon  any  bona  fide  charge  that  an  offense  has  been 
committed,  even  though  the  charge  may  not  be  sustained. 
Nevertheless,  no  violation  of  law  can  deprive  a  citizen  in  a 
foreign  country  of  the  right  to  protection  from  the  govern- 
ment of  his  own  country.  There  can  be  no  crime  which  leaves 
a  man  without  legal  rights.  One  is  always  entitled  to  insist 
that  he  shall  not  be  punished  except  in  accordance  with  law, 
or  without  such  a  hearing  as  the  universally  accepted  prin- 
ciples of  justice  demand.  If  that  right  be  denied  to  the  most 
desperate  criminal  in  a  foreign  countiy,  his  own  government 
can  and  ought  to  protect  him  against  the  wrong. 

Happily,  the  same  causes  which  are  making  questions  of 
alien  protection  so  frequent  are  at  the  same  time  bringing 
about  among  all  civilized  peoples  a  better  understanding  of 
the  rights  and  obHgations  created  by  the  presence  of  the  ahen 


56  INTERNATIONAL  SUBJECTS 

in  a  foreign  country;  a  fuller  acceptance  of  the  common  in- 
ternational standard  of  justice,  and  a  gradual  reduction  of 
the  local  prejudices  and  misimderstandings  which  are  in 
the  way  of  the  alien*s  getting  his  fuU  rights.  Discussions 
between  governments  upon  complaints  of  wrong  to  their 
citizens  tend  more  and  more  to  relate  to  questions  of  fact 
upon  the  determination  of  which  accepted  and  settled  rules 
can  be  readily  applied.  And  in  all  nations  the  wise  and  sound 
poHcy  of  equal  protection  and  impartial  justice  to  the  alien  is 
steadily  gaining  acceptance  in  the  remotest  parts  and 
throughout  even  the  least  instructed  commimities. 


THE  FUNCTION  OF  PRIVATE  CODIFICATION 
IN  INTERNATIONAL  LAW^ 

PRESIDENTIAL  ADDRESS  AT  THE  FIFTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  27.  1911 

THE  increasing  frequency  of  arbitration  and  the  pressure 
for  a  regular  Court  of  International  Justice  composed  of 
pennanent  judges,  have  given  new  emphasis  to  the  demand 
for  what  is  called  the  codification  of  international  law. 

The  process  and  the  result  intended  to  be  described  when 
the  term  codification  is  applied  to  international  law  involves 
something  very  different  from  the  codification  of  municipal 
law.  The  codifier  of  any  part  of  the  law  of  a  nation  finds  the 
law  with  which  he  is  to  deal  already  in  existence  and  authen- 
ticated. It  may  be  confused  in  form  and  apparently  un- 
related in  its  parts:  it  may  be  scattered  through  the  statu- 
tory enactments  of  many  years  and  the  declarations  of  a 
multitude  of  judicial  decisions;  the  codifier  may  have  to 
struggle  with  difficult  questions  of  apparent  inconsistency,  of 
doubtful  repeal,  of  obscurities  in  expression  calUng  for  inter- 
pretation and  construction,  and  with  conflicts  of  judicial 
opinion;  but  the  expressions  which  he  considers  all  come 
from  the  same  law-making  power.  Somewhere  in  the  mass  of 
material  is  to  be  found  the  final  expression  of  legislative  will, 
the  controlling  decision  of  the  courts,  and  when  these  are 

*  The  reader's  attention  is  called  to  the  fact  that  a  second  address  on  the  subject 
of  the  Codification  of  International  Law,  was  delivered  by  Mr.  Root  at  the  joint 
meeting  of  the  Subsection  on  International  Law  and  the  American  Institute  of 
International  Law  at  the  Second  Pan-American  Scientific  Congress,  Washington, 
D.  C,  December  80,  1915,  which  appears  at  page  429  of  this  volume. 

57 


68  INTERNATIONAL  SUBJECTS 

found  everything  inconsistent  with  them  may  be  rejected  as 
repealed  or  overruled.  The  codifier's  task  is  to  find  what  the 
rules  really  are;  to  put  them  in  due  relations  to  each  other 
under  appropriate  heads  in  accordance  with  some  systematic 
scheme  of  arrangement;  to  bring  order  out  of  confusion;  to 
furnish  a  methodical  statement  of  the  results  of  his  re- 
searches which  may  make  the  law  plain  to  the  people  who 
live  under  it  and  may  relieve  countless  lawyers  from  the 
necessity  of  going  through  the  same  wearisome  process  of 
inquiry  in  each  separate  case.  When  the  work  is  complete, 
if  it  is  acceptable,  the  legislative  power  of  the  State  puts  its 
stamp  of  approval  upon  it  and  resolves  any  doubts  or  uncer- 
tainties by  its  acceptance  of  the  codifier's  conclusions.  It 
may  indeed  be  that  the  research  of  the  codifier  and  the 
clearer  view  presented  by  a  systematic  arrangement  will 
have  revealed  inadequacies  of  expression,  incongruities,  and 
omissions  in  the  existing  law,  but,  as  to  these,  the  suggestions 
of  the  codifier  for  remedying  the  defects  discovered  will  be 
accepted  or  rejected  by  the  single  fiat  of  the  legislative  body 
which  enacts  the  code. 

In  the  main,  to  codify  municipal  law  is  to  produce  a  syste- 
matic, and  authoritative  statement  of  the  law  already 
prescribed  by  a  sovereign. 

An  attempt  to  codify  international  law  must  deal  with 
entirely  different  material  and  must  involve  a  very  different 
process.  Lord  Mansfield  has  described  the  law  of  nations  as 
"  founded  upon  justice,  equity,  convenience,  the  reason  of 
the  thing  and  confirmed  by  long  usage.'* 

When  any  one  undertakes  to  produce  a  systematic  state- 
ment of  the  rules  of  international  law,  having  no  statutes 
embodying  it,  no  binding  judicial  decisions  declaring  it,  no 
deliverance  of  any  law-making  power  estabUshing  it,  he  must 
have  recourse  to  a  vast  mass  of  conflicting  opinion  expressed 
by  a  multitude  of  text- writers,  of  pubHcists,  of  the  authors  of 


FUNCTION  OF  PRIVATE  CODIFICATION         59 

diplomatic  correspondence,  as  to  what  is  just,  what  is  equi- 
table, reasonable,  convenient,  with  very  defective  and  partial 
evidence  of  acceptance  by  the  civilized  nations  of  opinions 
one  way  or  another  upon  these  questions.  He  will  find  it 
possible  by  research  to  secure  evidence  of  the  acceptance  of 
certain  very  general  rules  of  conduct,  of  certain  ethical 
principles,  of  many  partial  and  a  few  general  usages  and  pre- 
cedents, and  the  conventional  acceptance  of  a  few  specific 
rules  designed  to  make  certain  the  practical  application  of 
general  principles.  A  very  great  part,  however,  of  the  so- 
called  rules  of  international  law,  the  relevancy  of  which  to  the 
practical  affairs  of  life  has  been  perceived,  and  which  have 
been  the  subject  of  discussion  among  international  lawyers, 
he  will  find  to  be  of  such  doubtful  authority,  to  rest  upon 
such  uncertain  and  partial  acceptance  by  governmental 
authority,  or  upon  such  vague  and  unsatisfactory  evidence 
of  usage,  that  they  will  certainly  be  open  to  dispute  when- 
ever cases  involving  diverse  interests  arise;  and  any  proper 
statement  of  them  must  be,  not  that  this  is  the  law,  but  that 
this  ought  to  be  the  law,  or  this  is  the  better  opinion,  or  this 
is  more  generally  received  as  being  the  rule  which  should 
govern.  The  substantial  work  of  international  codification  is, 
not  merely  to  state  rules  but  to  secure  agreement  as  to  what 
the  rules  are,  by  the  nations  whose  usage  must  confirm  them. 
Except  as  a  means  to  this  end,  any  codification  of  international 
law  can  be  of  little  value  except  as  a  topical  index  and  guide 
to  the  student.  As  a  means  to  this  end,  to  be  properly  used 
and  followed  out,  it  is  of  very  great  importance  to  press  for- 
ward the  work  of  codifying  international  law. 

To  codify  municipal  law  is  to  state  in  systematic  form  the 
results  of  the  law-making  process  already  carried  on  by  a 
nation  through  its  established  institutional  forms.  To  codify 
international  law  is  primarily  to  set  in  motion  and  promote 
the  law-making  process  itself  in  the  community  of  nations  in 


60  INTERNATIONAL  SUBJECTS 

which  the  institutional  forms  appropriate  for  the  carrying  on 
of  such  a  process  have  been  so  vague,  indistinct,  uncertain, 
and  irregular  that  they  could  hardly  be  said  to  exist  at  all. 

The  nations  are  a  law-making  power.  When  by  their 
confirmation  of  a  rule  of  justice  they  make  it  a  law  of  nations, 
it  is  truly  a  law  and  cannot  be  violated  without  punishment. 
But  no  government  ever  has  been  or  can  be  conducted  suc- 
cessfully except  through  the  creation  of  institutions  by  the 
orderly  working  of  which  the  will  of  the  governing  power 
becomes  transmuted  into  specific  rules  of  action  made  effec- 
tive and  applied  to  the  affairs  of  life.  In  the  absence  of 
institutional  forms  through  which  the  process  of  international 
law-making  may  be  carried  on  with  regularity,  the  process  is 
very  slow  and  difficult.  It  is  hindered  by  two  facts  resting 
in  human  nature.  The  first  is,  that  while  international  law 
can  be  made  only  by  the  assent  of  governments,  governments 
ordinarily  concentrate  their  attention  on  propositions  of 
international  law  affecting  any  given  subject  only  when  there 
is  some  practical,  concrete  case  arising  in  their  own  interna- 
tional relations  and  requiring  the  application  of  a  rule. 
Governments  are  practical  organizations  dealing  with  actual 
conditions,  continually  pressed  by  immediate  difficulties,  and 
the  men  engaged  in  them  ordinarily  have  but  little  time  and 
strength  to  devote  to  questions  which  for  practical  pmposes, 
so  far  as  they  themselves  are  concerned,  seem  academic 
because  they  have  not  yet  arisen  or  may  possibly  never  arise. 

Every  foreign  office  is  fully  occupied  with  questions  that  it 
must  decide,  and,  as  a  rule,  foreign  offices  will  not  concern 
themselves  with  any  other  question  unless  they  are  moved 
by  some  special  impulse  of  external  pressure  or  by  the 
promptings  of  exceptionally  far-sighted  pohcy. 

On  the  other  hand,  it  is  a  matter  of  common  observation 
that  the  only  way  to  secure  a  general  agreement  upon  a  rule 
of  action  is  to  secure  consideration  of  it  at  a  time  when  there 


FUNCTION  OF  PRIVATE  CODIFICATION         61 

is  no  concrete  case  calling  for  its  application;  when  there 
are  no  diverse  interests  tending  to  produce  different  views 
as  to  what  the  rule  should  be. 

This  is  very  well  illustrated  by  the  experience  of  all  the 
States  which  Kve  under  written  constitutions.  For  example, 
in  all  the  States  of  our  American  union  there  is  a  substantial 
similarity  in  a  series  of  constitutional  provisions  not  merely 
expressing  general  principles  of  justice  but  stating  specific 
rights  designed  practically  to  insure  the  benefit  of  those 
principles  to  the  individual  citizen,  such  as  the  prohibition 
against  taking  private  property  for  public  use  without  com- 
pensation; against  depriving  one  of  life,  liberty,  or  prop- 
erty, without  due  process  of  law;  against  being  put  twice  ia 
jeopardy  for  the  same  offense;  against  being  compelled  to 
testify  against  one's  self;  against  unreasonable  searches  and 
seizures;  against  excessive  bail  and  cruel  and  unusual 
punishment;  against  State  action  impairing  the  obligation 
of  contracts,  etc.  These  rules  are  adopted  through  a  process 
which  does  not  deal  at  all  with  concrete  cases.  They  are 
agreed  upon  by  the  people  of  the  States  as  rules  of  abstract 
justice.  There  is  no  American  State  in  which  the  people 
would  under  any  condition  abandon  them;  yet  it  would  be 
diflBcult  to  find  any  State  in  which  there  are  not  attempts 
made  every  year  on  the  part  of  the  officers  of  government  to 
evade  and  override  these  very  rules  in  concrete  cases.  In- 
deed the  reason  why  our  people  put  such  provisions  into  our 
constitutions  is  that  they  feel  that  if  they  do  not  make  such 
rules  of  action  binding  when  there  is  no  practical  question  at 
issue,  they  themselves  will  not  observe  the  rules  when  a  prac- 
tical question  is  presented.  They  know  that  the  time  for 
agreeing  upon  a  just  rule  of  action  and  the  occasion  for 
applying  a  rule  of  action  must  be  separate  and  distinct,  or 
the  interest  of  the  particular  occasion  will  override  and  con- 
trol the  law-maker's  sense  of  justice.    Of  course  these  con- 


fW  INTERNATIONAL  SUBJECTS 

siderations  apply  much  more  strongly  in  the  making  of  an 
international  law;  because  the  particular  occasion  for  the 
application  of  an  international  rule  ordinarily  is  created  by 
the  existence  of  diverse  interests  which  make  very  diflBcult 
any  agreement  as  to  what  the  rule  of  justice  is. 

It  thus  appears  that  in  the  ordinary  coiu-se  of  international 
affairs  the  only  occasions  when  it  is  possible  to  secure  the 
attention  of  a  law-making  power  to  questions  as  to  what  the 
rules  of  law  are  or  ought  to  be,  are  the  very  occasions  when  it 
is  most  diflficult  for  the  law-making  powers  to  agree  upon 
such  rules,  that  is,  the  most  difficult  for  them  to  establish  a 
rule  as  law.  The  movement  for  codification  of  international 
law  is  an  expression  of  a  natural  impulse  on  the  part  of  those 
who  are  interested  in  international  relations  to  remedy  this 
failure  of  national  governments  to  function  as  an  interna- 
tional law-making  power.  The  movement  has  proceeded 
along  several  apparently  distinct  lines.  The  first  has  been 
the  line  of  individual  codification  by  temperamental  succes- 
sors to  Jeremy  Bentham  —  men  whose  natures  moved  them 
to  evoke  order  out  of  confusion  and  to  give  system  and 
definiteness  to  the  subject-matter  contained  in  the  vast  mass 
of  writings  by  publicists  upon  international  law,  often  vague 
and  indefinite,  often  repetitious  and  prolix,  often  contentious 
and  prejudiced.  The  forty-five  years  which  have  passed 
since,  at  the  instance  of  Mr.  David  Dudley  Field,  the  British 
Association  for  the  Promotion  of  Social  Science  appointed  a 
committee  to  prepare  and  report  the  outline  of  an  interna- 
tional code  have  been  a  period  not  of  stagnation  but  of 
extraordinary  growth  in  the  direction  of  international  law- 
making. Although  Mr.  Field  alone  did  anything  under  the 
committee  appointment,  he  produced  his  own  admirable  draft 
outlines  of  an  international  code  in  1872.  In  the  meantime 
the  codification  by  Professor  Bluntschli  of  Heidelberg,  had 
been  published  in  1868.    The  code  of  Pasquale  Fiore,  of  the 


FUNCTION  OF  PRIVATE  CODIFICATION         63 

University  of  Naples,  was  published  in  1888,  and  in  1906  the 
project  for  a  code  of  public  international  law  by  M.  Duplessix 
was  published  at  Paris  and  crowned  by  the  Bureau  of  Interna- 
tional Peace.  A  comprehensive  draft  of  a  statute  has  thus 
been  made  in  four  different  countries  from  four  different 
national  points  of  view  at  different  times  and  upon  independ- 
ent, individual  initiative. 

In  the  meantime  also  another  process  has  been  going  on 
much  like  the  discussion  to  which  the  provisions  of  proposed 
laws  are  subject  in  committee  under  ordinary  methods  of 
legislative  procedure.  That  process  has  been  carried  on  by 
voluntary  international  associations  of  great  dignity  and 
consequence. 

The  Institute  of  International  Law  established  at  Ghent 
in  1873  has  devoted  itself  to  the  scientific  study  and  discus- 
sion of  the  law.  Closely  limited  in  number,  composed  entirely 
of  eminent  experts  whose  qualifications  have  already  been 
demonstrated  by  their  individual  writings,  filling  the  vacan- 
cies in  its  number  by  its  own  selection,  it  has  rendered  very 
great  services  in  the  systematic  development  of  the  science 
of  international  law.  It  has  drafted  and  adopted,  after  full 
discussion  and  mature  deliberation,  model  codes  upon  a  great 
number  of  subjects  and  has  bestowed  great  benefits  upon 
mankind  by  leading  the  way  in  the  study  of  international 
law  from  the  philosophical  and  historical  point  of  view. 

The  Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations,  organized  at  Brussels  in  the  same  year, 
1873,  under  the  initiative  of  James  B.  Miles,  the  Secretary 
of  the  American  Peace  Society,  and  with  the  cooperation  of 
David  Dudley  Field,  Theodore  Dwight  Woolsey,  WiUiam 
Beach  Lawrence,  Emory  Washburn,  Elihu  Burritt,  and 
many  other  distinguished  Americans,  is  still  active  under  its 
new  title  of  the  International  Law  Association.  Unlimited 
in  number,  welcoming  to  its  lists  all  competent  persons. 


64  mTEKNATIONAL  SUBJECTS 

including  not  merely  scientific  students  of  the  law  from  all 
countries,  but  merchants,  men  of  affairs,  underwriters,  ship 
owners,  economists,  municipal  lawyers,  politicians,  repre- 
sentatives of  chambers  of  commerce  and  peace  societies,  it  has 
discussed  questions  of  international  law  from  many  practical 
and  popular  points  of  view  and  has  dealt  with  the  apphcation 
of  scientific  principles  to  the  actual  conditions  of  international 
trade  and  intercourse. 

In  the  meantime  also  a  great  number  and  variety  of  inter- 
national societies  for  specific  purposes  have  arisen,  associa- 
tions devoted  to  political  economy;  to  the  promotion  of 
commerce  and  industry;  to  navigation  and  railroads;  to 
penology  and  criminal  anthropology;  to  the  legal  protection 
of  travellers  and  of  children  and  of  animals;  to  the  protection 
of  industrial  property  and  of  artistic  and  literary  property; 
to  reforming  the  abuse  of  alcoholic  drinks  and  the  suppression 
of  immoral  literature;  to  libraries  and  bibliography;  to 
education  and  insurance;  to  sanitation  and  hygiene  and 
demography;  to  universal  peace,  and  a  universal  language; 
to  engineering  and  architecture  and  agriculture;  to  more 
separate  sciences  and  more  different  reforms  than  one  can 
well  recall  without  a  memorandum.  The  recently  established 
Central  Office  of  International  Institutions  at  Brussels  in- 
vited a  congress  of  representatives  of  such  associations  to 
meet  at  Brussels  in  the  year  1910,  and  representatives  of  one 
hundred  and  thirty-four  international  associations  attended 
the  congress.  The  investigation  of  the  Central  Office  devel- 
ops the  fact  that  there  are  about  three  hundred  such  inter- 
national associations,  a  large  part  of  them  quite  ignorant  of 
the  others'  existence. 

Most  of  them  are  not  consciously  endeavoring  to  develop 
international  law,  but  they  are  building  up  customs  of  private 
international  action.  They  are  establishing  precedents, 
formulating  rules  for  their  own  guidance,  many  of  them  press- 


FUNCTION  OF  PRIVATE  CODIFICATION  65 

ing  for  iinif ormity  of  national  legislation  and  many  of  them 
m'ging  treaties  and  conventions  for  the  furtherance  of  their 
common  purposes.  A  great  part  of  them  represent  a  multi- 
tude of  national  associations  of  which  the  international 
association  is  a  federation.  Their  activity  is  making  a  multi- 
tude of  leaders  of  thought  in  almost  every  department  of 
human  effort  familiar  with  a  field  which  transcends  the 
limits  of  any  national  law  and  in  which,  if  regulation  be 
needed  at  all,  it  must  be  found  in  international  agreement. 

I  have  not  endeavored  to  make  an  exhaustive  enumera- 
tion, but  merely  to  give  instances  indicating  the  existence 
during  the  last  half -century  of  widespread,  continuous,  and 
intense  private,  unofficial  action  tending  in  the  direction  of 
international  law-making. 

But  aU  of  this  private  activity  did  not  of  itself  make  inter- 
national law.  However  plainly  founded  upon  justice,  equity, 
convenience,  and  the  reason  of  the  thing  a  rule  might  be,  in 
order  to  be  law  it  must  be  confirmed  by  the  nations.  And 
until  the  Peace  Conference  at  The  Hague  in  1899,  govern- 
ments, that  is  to  say,  the  only  powers  that  could  really  make 
international  law,  had  responded  but  indifferently  and  within 
narrow  Kmits  to  the  steadily  growing  unofficial  pressure. 

There  were,  it  is  true,  a  number  of  treaties  by  which  na- 
tions undertook  to  regulate  their  future  conduct  in  specific 
directions,  such  as,  the  Slave-Trade  Treaty,  in  1890;  the 
estabHshment  of  the  International  Bureau  of  Weights  and 
Measures,  in  1875;  the  Convention  for  the  International 
Protection  of  Industrial  Property,  in  1883;  for  the  Protection 
of  Submarine  Cables,  in  1884;  for  the  Exchange  of  Official 
Documents,  in  1886;  for  the  Publication  of  Customs  Tariffs, 
in  1890;  the  agreement  made  at  Saint  Petersburg  for  the  Pro- 
hibition of  the  Use  of  Explosive  Bullets,  in  1868;  and  the  Ge- 
neva Convention  relating  to  the  Treatment  of  the  Wounded 
of  Armies  in  the  Field,  in  1864.    But  mere  agreements  by 


66  INTERNATIONAL  SUBJECTS 

which  nations  stipulate  as  to  their  future  conduct  do  not  of 
themselves  make  international  law.  They  are  binding  only 
as  contracts  generally  are  binding.  It  is  true  also  that  the 
results  of  private  formulation  and  discussion  of  rules  of  inter- 
national law,  well  known  to  the  foreign  offices  of  the  worid, 
produced  an  effect  upon  the  conduct  of  nations  tending  to 
bring  about  that  usage  which  in  the  long  course  of  time 
would  ultimately  be  capable  of  proof  as  amounting  to  a 
confirmation. 

There  were  also  during  the  same  period  a  few  exceptional 
instances  of  a  new  departure  in  the  way  of  making  interna- 
tional law  by  substituting  a  formal  governmental  declaration 
of  the  law  for  the  proof  of  conduct  in  specific  instances  nec- 
essary to  establish  confirmation  by  long  usage. 

The  difficulties  experienced  in  the  Crimean  War  led  the 
negotiators  of  the  Treaty  of  Peace  in  1856  to  embody  in  the 
Declaration  of  Paris  a  statement  of  four  rules  affecting  cap- 
tures at  sea,  three  of  which  received  general  adherence.  The 
requirements  of  a  great  volunteer  army,  not  very  familiar 
with  the  history  and  customs  of  warfare,  in  1863,  led  to  the 
formulation  by  Doctor  Francis  Lieber  of  his  famous  instruc- 
tions for  the  government  of  the  armies  of  the  United  States 
in  the  field  —  a  code  of  one  himdred  and  fifty-seven  articles, 
which  was  approved  by  President  Lincoln  as  "  General 
Order  No.  100  of  1863."  This  codification  produced  among 
the  European  pubUcists  of  that  day  an  impression  which 
time  has  not  weakened.  Its  intrinsic  merit  and  its  practical 
appKcation  on  a  large  scale,  although  by  a  single  govern- 
ment, gave  it  a  distinction  and  authority  in  the  opinions  of 
mankind  which  it  has  never  lost. 

When  Great  Britain  and  the  United  States  were  about  to 
submit  the  Alabama  claims  to  arbitration  in  1871  they 
agreed  so  far  as  they  could  upon  the  law  regarding  the  rights 
and  duties  of  neutrals  which  should  govern  the  arbitrators, 


FUNCTION  OF  PRIVATE  CODIFICATION         67 

and  formulated  their  agreement  in  the  three  rules  of  the 
Treaty  of  Washington.  The  success  of  the  Geneva  arbitra- 
tion and  the  great  impression  produced  by  that  illustration 
of  the  practicability  of  peaceable  judicial  settlement  gave 
great  credit  to  the  steps  by  which  the  result  was  attained; 
but  of  course  the  agreement  of  two  nations  did  not  make  the 
three  rules  of  the  treaty  international  law  any  more  than 
President  Lincoln's  approval  of  Doctor  Lieber's  code  made 
that  international  law. 

The  year  1899  found  two  bodies  of  actors  in  the  field  of 
international  law  development  —  the  private  persons  who 
had  been  discussing  and  formulating  and  codifying  on  the 
one  hand,  and  the  governments,  who  alone  had  power  to 
make  law,  on  the  other  hand,  quite  separate  and  distinct; 
the  codifiers  apparently  pure  theorists  engaged  in  academic 
discussion;  the  governments  apparently  stoUd  and  indif- 
ferent to  all  but  the  specific  difficulties  with  which  they 
were  called  upon  to  deal  from  day  to  day.  Then  a  very  great 
event  was  brought  about.  It  was  unpremeditated,  unin- 
tended, and  unforeseen.  The  Czar  of  Russia,  by  his  note  of 
August  12-24,  1898,  inspired  by  a  noble  humanitarian  senti- 
ment, had  called  an  international  conference  for  the  specific 
purpose  of  considering  the  limitation  of  armaments.  In 
that  note  Count  Mouravieff  said: 

To  put  an  end  to  these  incessant  armaments  and  to  seek  the  means  of 
warding  off  the  calanuties  which  are  threatening  the  whole  world,  —  such 
is  the  supreme  duty  which  is  today  imposed  on  all  States. 

Filled  with  this  idea,  His  Majesty  has  been  pleased  to  order  me  to  pro- 
pose to  all  the  Governments  whose  representatives  are  accredited  to  the 
Imperial  Court,  the  meeting  of  a  conference  which  would  have  to  occupy 
itself  with  this  grave  problem. 

The  powers  assented  to  the  Russian  proposal,  but  before 
the  conference  met  it  had  become  evident  that  there  was  no 
possibihty  whatever  of  securing  an  agreement  upon  any  plan 
to  accomplish  the  purpose  for  which  the  conference  was 


68  INTERNATIONAL  SUBJECTS 

called.  If  public  failure  was  to  be  avoided  it  was  necessary 
to  find  something  for  the  conference  to  do,  and  for  the  con- 
ference to  do  something  quite  apart  from  its  original  purpose. 
What  the  conference  did  was  to  bridge  the  chasm  between 
individual  opinion  and  government  action;  between  the 
codifiers  of  international  law  and  the  makers  of  international 
law.  Then  was  inaugurated  for  the  first  time  an  institution 
through  which  instructed,  deliberate,  and  mature  opinion 
might  find  the  method  and  machinery  for  its  direct  and  effec- 
tive development  into  law  through  the  concerted  action  in 
prescribed  and  orderly  procedure,  of  the  law-making  powers 
constituting  the  community  of  nations.  The  Second  Hague 
Conference  in  1907,  in  its  broader  and  progressive  results 
and  its  provision  for  still  a  third  conference,  made  certain  the 
continued  life  of  the  institution.  In  these  great  assemblies 
the  work  of  the  codifiers  bore  fruit.  Lieber's  epoch-making 
code  of  rules  for  the  conduct  of  armies  in  the  field  became 
law.  The  three  rules  of  the  Treaty  of  Washington  became  law. 
Much  of  the  painstaking  and  pubHc-spirited  work  of  the 
Institute  of  International  Law,  and  notably  that  contained 
in  its  codification  of  the  laws  of  war  on  land,  adopted  at 
its  meeting  of  1880,  became  law.  The  patient  thought 
which  had  evoked  from  the  wilderness  of  precedent  and 
philosophical  discussion,  and  had  tested  and  codified  and 
formulated  in  systematic  statement  the  rules  that  ought  to 
govern  nations,  had  prepared  material,  directed  thought, 
and  created  opinion  which  made  it  possible  for  The  Hague 
conferences  to  act.  The  instructed  thought  of  the  world,  the 
sentiment  of  the  world  in  favor  of  effective  law,  the  belief  of 
the  world  in  the  possibihty  of  effective  law,  had  been  led  to 
such  a  condition  that  the  atmosphere  of  the  conferences  dis- 
coiu-aged  factious  opposition,  gave  heart  to  the  friends  of 
progressive  development,  and  disappointed  the  cynical 
disbelief  of  hide-bound  reactionaries. 


FUNCTION  OF  PRIVATE  CODIFICATION         69 

The  success  of  The  Hague  conferences  was  possible  because 
in  the  fullness  of  time  the  world  was  ready  for  them;  and  the 
world  was  made  ready  by  the  voluntary  service  of  a  multitude 
of  private,  unoflScial  workers  in  the  field  of  international  law 
working  out  just  conclusions  by  scientific  methods  in  practical 
form  and  urging  upon  the  attention  of  mankind  the  need 
and  the  possibiHty  of  extending  the  control  over  nations  of 
universally  accepted  law.  While  mankind  has  looked  with 
approval  upon  the  specific  results  attained  by  the  two  Hague 
conferences,  it  does  not  yet  appreciate  the  tremendous  sig- 
nificance of  the  institution  which  has  been  created,  or  fully 
discern  the  fact  that  a  new  era  in  the  law  of  nations  has  been 
inaugurated;  and  very  few  men  appreciate  the  great  part 
which  has  been  played  by  the  unoflScial  international  lawyer 
in  this  great  movement  of  civilization. 

The  final  act  of  the  Second  Hague  Conference  declared: 

Finally,  the  Conference  recommends  to  the  powers  the  assembling  of  a 
Third  Peace  Conference,  which  might  be  held  within  a  j>eriod  corresf)ond- 
ing  to  that  which  has  elapsed  since  the  preceding  conference,  at  a  date  to 
be  fixed  by  common  agreement  between  the  powers,  and  it  calls  their  at- 
tention to  the  necessity  of  preparing  the  programme  of  this  Third  Con- 
ference a  suflBcient  time  in  advance  to  ensure  its  deliberations  being 
conducted  with  the  necessary  authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that  it  would  be 
very  desirable  that,  some  two  years  before  the  probable  date  of  the  meet- 
ing, a  preparatory  committee  should  be  charged  by  the  governments  with 
the  task  of  collecting  the  various  proposals  to  be  submitted  to  the  con- 
ference, of  ascertaining  what  subjects  are  ripe  for  embodiment  in  an  inter- 
national regulation,  and  of  preparing  a  programme  which  the  governments 
should  decide  upon  in  suflScient  time  to  enable  it  to  be  carefully  examined 
by  the  countries  interested.  This  committee  should  further  be  intrusted 
with  the  task  of  proposing  a  system  of  organization  and  procedure  for  the 
conference  itself. 

Here  lies  the  pressing  duty  of  the  international  lawyer. 
What  subjects  shall  be  "  ripe  for  embodiment  in  international 
regulation  '*  when  the  next  great  law-making  council  of  the 
nations  convenes;    where  lies  the  greatest  need;    in  what 


70  INTERNATIONAL  SUBJECTS 

direction  are  the  lines  of  least  resistance;  upon  what  subject 
is  general  opinion  most  nearly  ready  for  crystallization. 
That  some  subject  shall  be  ready  with  opinions  sufficiently 
matured  to  make  it  possible  for  a  conference  within  the  short 
space  of  a  few  months  to  reach  effective  conclusions  is  vital 
to  the  continuance  of  the  progress  in  which  we  are  all  so 
deeply  interested.  Now,  as  heretofore,  the  work  of  prepara- 
tion must  be  done  chiefly  upon  private  and  unofficial  initia- 
tive. Codifiers  must  draft  and  systematize  and  clarify. 
Associations  must  discuss  and  obviate  objections,  and  recon- 
cile the  philosophical  and  the  practical,  and  work  out  con- 
clusions and  educate  opinion.  Industry,  learning,  accurate 
thought,  knowledge  of  practical  affairs  and  breadth  of  view 
must  prepare  the  definite  expression  of  what  has  been  found 
to  be  just  and  reasonable,  so  that  there  may  be  that  formal 
acceptance  which  shall  make  it  international  law. 

The  necessity  of  this  development  of  international  law  to 
the  movement  for  international  judicial  settlement  is  well 
illustrated  by  the  Conference  of  London.  The  convention  of 
the  Second  Hague  Conference  for  the  establishment  of  an 
international  Prize  Court  marks  the  furthest  point  to  which 
the  movement  for  the  judicial  settlement  of  international  dis- 
putes has  gone.  It  establishes  a  regular  coiu±  of  justice 
composed  of  judges  appointed  to  the  Court  and  paid  a  fixed 
compensation  as  distinguished  from  arbitrators  selected  for 
a  particular  case,  with  compulsory  jurisdiction  in  cases  of 
prize  either  by  appeal  from  or  a  rehearing  notwithstanding 
the  decisions  of  national  tribimals. 

It  provides  that  if  there  be  a  treaty  between  the  parties, 
the  treaty  provisions  shall  govern,  but  that,  "  in  the  absence 
of  such  provisions  the  Coiui;  shall  apply  the  rules  of  inter- 
national law.  If  no  generally  recognized  rule  exists,  the 
Court  shall  give  judgment  in  accordance  with  the  general 
principles  of  justice  and  equity." 


I 


FUNCTION  OF  PRIVATE  CODIFICATION         71 

When  Great  Britain  came  to  consider  the  ratification  of 
this  convention  it  seemed  to  her  government  that  there  were 
so  many  important  questions  coming  within  the  jurisdiction 
of  the  Court  upon  which  no  generally  recognized  rule  existed 
and  that  there  was  so  much  doubt  as  to  how  the  Court 
would  apply  the  general  principles  of  justice  and  equity  that 
the  interest  of  her  naval  power  and  vast  commerce,  required 
some  further  agreement  as  to  the  law  which  the  Court  was  to 
administer.  Accordingly  a  new  conference  of  the  principal 
naval  powers  was  called  by  Great  Britain  and  met  in  London 
in  1908. 

The  conference  was  attended  by  the  representatives  of 

Germany,    the    United    States,    Austria-Hungary,    Spain, 

France,  Great  Britain,  Italy,  Japan,  the  Netherlands  and 

Russia.    After  months  of  discussion  it  adopted  a  declaration 

concerning  the  laws  of  naval  war,  in  seventy-one  articles, 

classified  in  nine  chapters,  concerning  blockade  in  time  of 

war,  contraband,  unneutral  service,  destruction  of  neutral 

prizes,  transfer  to  a  neutral  flag,  enemy  character,  convoy, 

resistance  to  search,  and  compensation.     The  declaration 

settled  many  questions  discussion  upon  which  had  been 

historic.    The  operative  provision  was  in  these  words: 

The  signatory  powers  are  agreed  that  the  rules  contained  in  the  fol- 
lowing chapters  correspond  in  substance  with  the  generally  recognized 
principles  of  international  law. 

The  declaration  concluded  with  an  invitation  for  the  adher- 
ence of  other  powers.  How  universal  the  confirmation  of  the 
declaration  may  be  or  what  modification,  if  any,  it  may 
require  before  it  becomes  final  is  not  yet  certain.  But  the 
procedure  of  the  conference  is  a  model  for  international 
declaratory  legislation.  Its  success  is  proof  of  the  practica- 
bility of  effective  codification  and  its  origin  is  evidence  that  a 
complete  system  for  the  judicial  settlement  of  international 
disputes  will  require  the  codification  of  international  law. 


7«  INTERNATIONAL  SUBJECTS 

It  is  cause  for  satisfaction  that  this  Association  has  under- 
taken and  is  proceeding  in  so  practical  a  way  to  do  its  share  in 
this  great  work  of  preparation.  It  is  to  be  hoped  that  we  may 
work  usefully  in  the  spirit  of  those  Americans  who  played 
such  an  honorable  part  in  the  beginning  of  this  great  move- 
ment by  which,  in  the  last  half -century,  the  development  of 
international  law  has  been  carried  so  far. 


THE  REAL  SIGNIFICANCE   OF  THE 
DECLARATION  OF  LONDON 

PRESIDENTIAL  ADDRESS  AT  THE  SIXTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  25,   1912 

The  arguments  for  the  establishment  of  an  international  prize  court  are  set 
forth  in  the  following  address,  in  which  are  also  stated  the  reasons  for  the  meeting 
of  the  Naval  Conference  of  London,  December  2,  1908,  participated  in  by  ten  lead- 
ing maritime  powers.  The  document  called  the  Declaration  of  London  was  adopted 
by  this  conference  February  26,  1909. 

Through  Mr.  Root's  intervention  as  senator,  the  Declaration  of  London  was 
advised  and  consented  to  by  the  United  States  Senate  on  April  24,  1912.  The 
legislation  necessary  to  carry  it  into  effect  was  passed  by  the  British  House  of  Com- 
mons, but  was  rejected  by  the  House  of  Lords  on  December  15,  1911.  This  failure, 
and  the  failure  of  Great  Britain  to  ratify  the  Declaration,  prevented  that  country 
from  fixing  a  date  for  the  deposit  of  ratifications  at  London,  as  contemplated  by 
Article  67  of  the  Declaration. 

The  provisions  of  the  Declaration  were  incorporated  in  the  German  Prize  Ordi- 
nance of  September  30,  1909,  and  issued  on  August  3,  1914;  and  in  the  French 
Instructions  sur  rapplication  du  droit  international  en  caa  de  guerre  of  December  19, 
1912. 

Upon  the  outbreak  of  the  war  in  1914,  the  United  States  suggested  to  the  belli- 
gerent powers  that  the  Declaration  of  London  should  be  observed  as  a  rule  of  con- 
duct during  the  continuance  of  the  war.  This  proposition  did  not  meet  with  the 
approval  of  all  the  belligerents,  and  was  withdrawn.  The  Declaration  of  London 
cannot  therefore  be  considered  as  international  law,  although  its  moral  effect  has 
been  considerable. 

THE  principal  achievement  of  The  Hague  Conference  of 
1907  was  the  Convention  for  an  International  Prize 
Court.  That  Convention  provided  for  a  real  and  permanent 
court  composed  of  judges  who  were  to  be  appointed  by  the 
contracting  powers  for  terms  of  six  years,  were  required  to  be 
**  judges  of  known  proficiency  in  questions  of  international 
maritime  law  and  of  the  highest  moral  reputation,"  and  were 
to  be  paid  a  stated  compensation  from  a  fund  contributed  by 
all  the  powers. 

7S 


74  INTEKNATIONAL  SUBJECTS 

Jurisdiction  was  conferred  upon  the  court  to  review  on 
appeal  all  judgments  of  national  prize  courts.  By  a  subse- 
quent agreement,  for  the  purpose  of  avoiding  difficulties 
presented  by  the  constitutions  of  some  of  the  signatory 
powers,  an  alternative  procedure  was  authorized  under 
which  the  new  court  might  pass  upon  the  question  involved 
in  the  case  of  prize  de  novo,  and  notwithstanding  any  judg- 
ment of  the  national  prize  court,  instead  of  passing  upon  it 
by  way  of  appeal  from  that  judgment.  Article  7  of  the 
Convention  provides: 

If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in  force  between 
the  belligerent  captor  and  a  power  which  is  itself  or  whose  subject  or  citizen 
is  a  party  to  the  proceedings,  the  court  is  governed  by  the  provisions  of  the 
said  treaty. 

In  the  absence  of  such  provisions  the  coiu"t  shall  apply  the  rule  of  inter- 
national law.  If  no  generally  recognized  rule  exists  the  court  shall  give 
judgment  in  accordance  with  the  general  principles  of  justice  and  equity. 

In  estimating  the  value  of  such  an  agreement  among  the 
civilized  powers  it  is  worth  while  even  for  a  student  of  inter- 
national law  to  recall  the  wide  range  and  critical  importance 
of  the  questions  to  be  included  within  the  jiu*isdiction  of  the 
new  court. 

When  war  breaks  out  between  two  considerable  maritime 
powers  the  commerce  of  the  whole  world  is  immediately 
affected.  Each  belligerent  nation  undertakes,  so  far  as  it 
can,  to  cripple  its  enemy  both  by  direct  military  and  naval 
operations  and  by  cutting  off  supplies,  interfering  with 
sources  of  income,  and  generally  weakening  the  enemy's 
national  power  to  maintain  an  army  and  navy. 

The  Hability  of  enemy  merchant  ships  to  capture  tends  to 
throw  the  conunerce  formerly  carried  on  by  the  belligerent 
nations  into  the  hands  of  neutrals  while  the  necessary  pohcy 
of  each  beUigerent  lU'ges  it  to  circumscribe  and  prevent  so 
far  as  it  can  the  neutral  commerce  with  the  other  belligerent. 
Blockades  and  searches  and  seizures  for  carrying  contraband 


DECLARATION  OF  LONDON  75 

goods  are  familiar  methods  of  giving  effect  to  this  policy. 
Added  to  this  is  the  necessity  of  constant  watchfulness  by 
belligerents  to  prevent  neutral  vessels  from  rendering  direct 
service  to  the  enemy's  forces,  such  as  the  transportation  of 
officers  and  troops  or  messengers,  or  the  transmission  of  in- 
teUigence.  Li  this  way  belligerents  fall  into  an  attitude  of 
suspicion  toward  neutral  vessels  and  unfriendliness  toward 
neutral  commerce,  and  the  peaceable  commerce  of  the 
world  falls  into  an  attitude  of  resenting  what  it  regards  as 
unwarranted  interference.  The  most  striking  illustration  of 
this  tendency  is  to  be  found  in  the  tremendous  conflicts 
of  the  Napoleonic  wars,  when  Pitt  and  Napoleon  waged  war 
not  merely  with  armies  and  navies  but  with  British  Orders 
in  Coimcil  and  Continental  Decrees.  The  Prussian  Decree 
which  began  the  series  at  the  instance  of  Napoleon,  on 
March  28,  1806,  declared  the  coast  of  the  North  Sea  closed 
against  Great  Britain.  On  April  8, 1806,  Great  Britain  retali- 
ated for  that  Decree  by  the  first  Order  in  Council,  which  de- 
clared the  blockade  of  the  Ems,  the  Weser,  the  Elbe,  and  the 
Trave.  On  May  16, 1806,  came  the  second  Order  in  Council 
declaring  a  blockade  of  the  whole  coast  of  the  Continent 
from  the  Elbe  to  Brest.  On  October  14,  1806,  Napoleon 
retahated  with  the  famous  Berlin  Decree,  which  prohibited 
all  commerce  with  England.  On  January  7,  1807,  another 
British  Order  in  Council  declared  all  neutral  trading  with 
France,  or  from  port  to  port  with  any  possession  of  France, 
or  with  any  of  the  allies  of  France  anywhere,  to  be  ground  for 
condemnation.  On  December  17,  1807,  Napoleon's  Milan 
Decree  declared  a  sentence  of  outlawry  upon  England  and 
all  EngHsh  ships.  It  was  impossible  that  such  a  process 
should  not  involve  all  Europe  in  a  imiversal  war;  and  an 
aftermath  of  England's  enforcement  of  her  policy  upon  the 
neutral  shipping  of  the  United  States  was  the  War  of  1812. 
The  Civil  War  in  the  United  States  gave  rise  to  a  multitude 


76  INTERNATIONAL  SUBJECTS 

of  controversies  between  the  United  States  and  Great  Brit- 
ain, arising  on  one  side  from  the  seizure  by  the  United 
States  of  numerous  vessels  charged  with  directly  or  indirectly 
attempting  to  violate  the  blockade  of  the  southern  coast,  or 
with  carrying  contraband,  and  arising  on  the  other  side  from 
the  fitting  out  of  Confederate  cruisers  in  the  neutral  ports  of 
Great  Britain.  The  negotiations  which  led  to  the  settlement 
of  both  classes  of  these  claims  by  arbitration  imder  the 
Treaty  of  Washington  involved  no  sKght  strain  upon  the 
temper  and  'good  sense  of  both  nations,  and  the  result  was 
reached  against  most  violent  protest  on  the  part  of  many 
who  preferred  war  to  concession.  In  the  recent  war  between 
Russia  and  Japan  a  feeling  of  strong  resentment  was  created 
in  England  by  Russia's  course  in  sinking  the  British  mer- 
chantmen, the  Knight  Commander,  the  Saint  Kilda,  the 
Hipsang,  and  the  Allenton,  and  in  the  capture  of  the  Ma- 
lacca by  Russian  vessels  which  had  passed  the  Dardanelles 
and  the  Suez  Canal  as  merchantmen  and  then  converted 
themselves  into  cruisers. 

There  is  no  more  fruitfid  source  of  international  contro- 
versy, of  international  resentment  and  dislike,  than  in  the 
great  multitude  of  questions  relating  to  the  rights  and 
wrongs  of  neutrals  and  of  belligerents  in  a  war  between 
maritime  powers.  The  tendency  always  is  for  the  war 
to  spread  through  these  controversies  and  exasperated  feel- 
ings, and  the  adjudication  of  questions  by  national  prize 
courts  naturally  fails  to  allay  the  irritation.  Provision  for 
the  international  judicial  determination  of  such  questions 
is  adapted  not  only  to  preserve  the  substantial  rights  of 
neutral  conmierce  and  of  belligerents,  but  also  to  prevent 
the  spread  of  war  much  as  municipal  ordinances  are  framed 
to  check  the  spread  of  fire,  and  sanitary  regulations  to  pre- 
vent the  communication  of  infectious  disease.  Considered 
by  itself,  the  concurrence  of  the  major  part  of  the  civiUzed 


DECLARATION  OF  LONDON  77 

world  in  the  project  of  this  convention  was  an  event  of 
the  first  importance  in  the  development  of  international 
peace. 

When  Great  Britain,  however,  came  to  consider  the  ratifi- 
cation of  the  Prize  Court  Convention  she  found  herself  con- 
fronted by  practical  considerations  arising  from  her  insular 
position,  her  dependence  upon  foreign  food  supplies,  the  wide 
extension  of  her  colonial  empire,  her  enormous  merchant 
marine,  and  the  relation  between  the  eflfectiveness  of  her 
great  navy  and  her  national  existence.  The  effect  of  these 
considerations  upon  the  Government  of  Great  Britain  is  best 
stated  in  the  words  of  a  communication  which  that  Govern- 
ment addressed  on  February  27,  1908,  to  the  other  principal 
maritime  powers.  In  that  communication  Sir  Edward  Grey 
said: 

Article  7  of  the  convention  provides  th%t,  in  the  absence  of  treaty 
stipulations  applicable  to  the  case,  the  Court  is  to  decide  the  appeals  that 
come  before  it,  in  accordance  with  the  rules  of  international  law,  or  if  no 
generally  recognized  rules  exist,  in  accordance  with  the  general  principles 
of  justice  and  equity. 

The  discussions  which  took  place  at  The  Hague  during  the  recent  con- 
ference showed  that  on  various  questions  connected  with  maritime  war 
divergent  views  and  practices  prevailed  among  the  nations  of  the  world. 
UfKjn  some  of  these  subjects  an  agreement  was  reached,  but  on  others  it 
was  not  found  possible  within  the  period  for  which  the  conference  as- 
sembled, to  arrive  at  an  understanding.  The  impression  was  gained  that 
the  establishment  of  the  International  Prize  Coiu-t  would  not  meet  with 
general  acceptance  so  long  as  vagueness  and  uncertainty  exist  as  to  the 
principles  which  the  Court,  in  dealing  with  appeals  brought  before  it, 
would  apply  to  questions  of  far-reaching  importance  aflfecting  naval 
policy  and  practice. 

His  Majesty's  Government  therefore  propose  that  another  conference 
should  assemble  during  the  autumn  of  the  present  year,  with  the  object  of 
arriving  at  an  agreement  as  to  what  are  the  generally  recognized  principles 
of  international  law,  within  the  meaning  of  paragraph  2  of  article  7  of  the 
convention,  as  to  those  matters  wherein  the  practice  of  nations  has  varied, 
and  of  then  formulating  the  rules  which,  in  the  absence  of  special  treaty 
provisions  applicable  to  a  particular  case,  the  Court  should  observe  in 
dealing  with  appeals  brought  before  it  for  decision. 


78 


INTERNATIONAL  SUBJECTS 


That  is  to  say,  the  realization  of  the  International  Prize 
Court  must  be  postponed  until  an  agreement  can  be  reached 
upon  the  rules  of  law  and  the  principles  of  justice  and  equity 
which  the  Court  is  to  apply  to  international  controversies. 
No  dissent  from  this  view  appears  to  have  been  expressed  and 
piwsuant  to  the  British  invitation,  Austria-Himgary,  France, 
Germany,  Italy,  Japan,  Russia,  Spain,  the  Netherlands,  and 
the  United  States,  sent  their  delegates  to  the  proposed  con- 
ference in  London.  The  conference  met  on  December  4, 
1908,  and  continued  to  February  26,  1909. 

The  task  of  the  conference  was  delicate  and  diflScult.  The 
Declaration  of  Paris  in  1856  had,  it  is  true,  furnished  four 
rules  as  a  point  of  departure: 

(1)  Privateering  is  and  remains  abolished. 

(2)  The  neutral  flag  covers  enemy's  merchandise  with  the  exception  of 
contraband  of  war. 

(3)  Neutral  merchandise,'  with  the  exception  of  contraband  of  war,  is 
not  capturable  imder  the  enemy's  flag. 

(4)  Blockades,  in  order  to  be  obligatory,  must  be  effective;  that  is  to 
say,  maintained  by  a  force  suflScient  to  really  prevent  access  to  the  coast 
of  the  enemy. 

But  the  half -century  which  had  elapsed  since  the  Declara- 
tion of  Paris  had  shown  that  these  rules  left  uncovered  a 
great  field  of  controversy  and  that  they  had  themselves  given 
rise  to  numerous  questions  for  which  they  afforded  no  solu- 
tion. The  divergent  views  upon  these  subjects  of  contro- 
versy had  become  intrenched  in  many  traditional  ideas  of 
different  nations  as  to  the  requirements  of  their  national 
interests  either  as  possible  belligerents  or  possible  neutrals, 
and  these  ideas  made  concessions  difficult,  so  difficult  that  at 
the  Second  Hague  Conference  it  had  been  found  quite  im- 
practicable to  reach  any  conclusions  upon  questions  of  this 
character  having  real  importance. 

The  members  of  the  London  Conference  addressed  them- 
selves to  their  work  with  ability,  knowledge,  and  good 


DECLARATION  OF  LONDON  79 

temper,  and  they  agreed  upon  a  code  of  rules  which  they 
called  a  "Declaration  concerning  the  Laws  of  Naval  War", 
and  which  is  known  as  the  Declaration  of  London.  The  first 
chapter  of  the  Declaration,  containing  twenty-one  articles, 
deals  with  the  law  of  blockade  in  time  of  war.  The  second 
chapter  covers  the  law  of  contraband,  in  twenty-three  arti- 
cles. The  third  chapter  contains  three  articles  upon  the  law  of 
unneutral  service.  The  fourth  chapter,  seven  articles,  on  the 
destruction  of  neutral  prizes.  The  fifth  chapter,  two  articles, 
on  transfer  of  flag.  The  sixth  chapter,  four  articles,  on  enemy 
character.  The  seventh  chapter,  two  articles  regarding  con- 
voy. The  eighth  chapter,  one  article  concerning  resistance 
to  search.  The  ninth  chapter,  an  article  upon  compensation. 
Then  follow  seven  final  articles.  The  preamble  of  the  Dec- 
laration declares  the  Powers  (naming  them)  — 

Considering  the  invitation  which  the  British  Government  has  given  to 
various  Powers  to  meet  in  conference  in  order  to  determine  together  as  to 
what  are  the  generally  recognized  rules  of  international  law  within  the 
meaning  of  Article  7  of  the  Convention  of  October  18, 1907,  relative  to  the 
establishment  of  an  Litemational  Prize  Court; 

Recognizing  all  the  advantages  which  in  the  imfortunate  event  of  a 
naval  war  an  agreement  as  to  the  said  rules  would  present,  both  as  regards 
peaceful  commerce,  and  as  regards  the  belligerents  and  as  regards  their 
political  relations  with  neutral  Governments; 

Considering  that  the  general  principles  of  international  law  are  often  in 
their  practical  application  the  subject  of  divergent  procedure; 

Animated  by  the  desire  to  insure  henceforward  a  greater  uniformity  in 
this  respect; 

Hoping  that  a  work  so  important  to  the  common  welfare  will  meet  with 
general  approval: 

Have  appointed  as  their  Plenipotentiaries,  that  is  to  say:  (names  of 
plenipotentiaries) 

Who,  after  having  communicated  their  full  powers,  found  in  good  and 
due  form,  have  agreed  to  make  the  present  Declaration:  — 

PREUMINARY  PROVISION 

The  Signatory  Powers  are  agreed  in  declaring  that  the  rules  contained 
in  the  following  Chapters  correspond  in  substance  with  the  generally 
recognized  principles  of  international  law. 


80  INTERNATIONAL  SUBJECTS 

It  is  interesting  to  observe  that  in  the  rules  regarding  con- 
traband, the  doctrine  of  continuous  voyages,  with  which  the 
Americans  were  so  much  concerned  during  the  Civil  War,  is 
applied  to  absolute  contraband  but  not  to  conditional  contra- 
band; that  the  great  extension  of  the  list  of  contraband 
articles,  which,  in  the  war  between  Russia  and  Japan, 
caused  such  general  dissatisfaction  among  neutrals  and 
threatened  to  nullify  the  doctrine  that  free  ships  make  free 
goods,  has  been  checked  by  a  definite  list  of  articles  which 
are  not  under  any  circumstances  to  be  considered  contra- 
band, and  by  carefully  framed  provisions  requiring  affirma- 
tive proof  that  goods  are  destined  for  the  use  of  the  armed 
forces  or  a  government  department  of  the  enemy  as  a  condi- 
tion upon  the  right  to  seize  conditional  contraband.  It  is  also 
interesting  that  the  question  so  much  discussed  at  the  time  of 
the  Trent  affair  between  England  and  the  United  States  has 
been  disposed  of  by  the  provision  of  Article  47  that  "  any 
individual  embodied  in  the  armed  forces  of  the  enemy  who  is 
found  on  board  a  neutral  merchant  vessel  may  be  made  a 
prisoner  of  war  even  though  there  may  be  no  ground  for  the 
capture  of  the  vessel." 

This  by  implication  excludes  civil  agents  such  as  Mason 
and  Slidell  from  capture  but  approves  the  method  followed 
by  Captain  Wilkes  in  taking  persons  assumed  to  be  liable  to 
capture  from  the  vessel  and  releasing  the  vessel. 

It  is  not,  however,  my  purpose  to  discuss  the  specific 
provisions  of  these  rules. 

The  Declaration  was  accompanied  by  a  very  lucid  and 
illuminating  report  prepared  by  M.  Renault,  which  was  pre- 
sented to  the  Conference  upon  behalf  of  the  Drafting  Com- 
mittee and  which,  under  Continental  usage,  is  to  be  treated 
as  an  authoritative  explanation  of  the  text.  The  report  says 
of  the  Declaration: 


DECLARATION  OF  LONDON  81 

The  body  of  niles  contained  in  the  Declaration,  which  is  the  result  of  the 
deliberations  of  the  Naval  Conference,  and  which  is  to  be  entitled  Declara- 
tion concerning  the  Laws  of  Naval  War,  answers  well  to  the  desire  expressed 
by  the  British  Government  in  its  invitation  of  February,  1908.  The  ques- 
tions of  the  programme  are  all  settled  except  two,  concerning  which  ex- 
planations will  be  given  later.  The  solutions  have  been  deduced  from  the 
various  views  or  diflFerent  practices  and  correspond  to  what  may  be  called 
the  media  aententia.  They  do  not  always  harmonize  absolutely  with  the 
views  peculiar  to  each  country,  but  they  do  not  shock  the  essential  ideas  of 
any.  They  should  not  be  examined  separately,  but  as  a  whole,  otherwise 
one  runs  the  risk  of  the  most  serious  misxmderstandings.  In  fact,  if  one 
considers  one  or  more  isolated  rides  either  from  the  beUigerent  or  the  neu- 
tral point  of  view,  he  may  find  the  interests  with  which  he  is  especially 
concerned  have  been  disregarded  by  the  adoption  of  these  rules,  but  the 
rides  have  their  other  side.  The  work  is  one  of  compromise  and  a  mutual 
concession.    Is  it,  as  a  whole,  a  good  work  ? 

We  confidently  hope  that  those  who  study  it  seriously  will  answer 
affirmatively.  The  Declaration  substitutes  uniformity  and  certainty  for 
the  diversity  and  the  obscurity  from  which  international  relations  have  too 
long  suffered.  The  Conference  has  tried  to  reconcile  in  an  equitable  and 
practical  way  the  rights  of  belligerents  and  those  of  neutral  commerce;  it 
is  made  up  of  Powers  placed  in  very  unlike  conditions,  from  the  political, 
economic,  and  geographical  points  of  view.  There  is  on  this  account 
reason  to  suppose  that  the  rules  on  which  these  Powers  are  in  accord  take 
suflScient  account  of  the  different  interests  involved,  and  hence  may  be 
accepted  without  disadvantage  by  all  the  others. 

Two  questions  proposed  by  Great  Britain  to  the  Confer- 
ence remain  unanswered:  one,  relating  to  the  transforma- 
tion of  merchant  vessels  into  warships  on  the  high  seas,  and 
the  other,  the  question  whether  the  nationality  or  the  domi- 
cile of  the  owner  should  be  adopted  in  determining  whether 
property  is  enemy  property.  Upon  these  questions  the 
divergence  of  views  remains  unsettled.  But  throughout  the 
great  field  of  controversy  in  this  branch  of  international  law 
all  existing  differences  have  been  settled  by  fair  agreement 
upon  just  and  reasonable  rules. 

Professor  Westlake  said,  in  the  Nineteenth  Century^  for 
March,  1910: 


82  INTERNATIONAL  SUBJECTS 

That  the  ten  greatest  naval  powers  of  the  world  should  have  met  in 
conference  on  the  laws  of  naval  war  as  affecting  neutrals,  and  that  after 
careful  consideration  they  should  have  agreed  upon  a  code  so  comprehen- 
sive as  that  contained  in  the  Declaration  of  London,  would  alone  suffice  to 
make  the  year  nineteen  himdred  and  nine  memorable  to  all  who  are  inter- 
ested in  the  improvement  of  international  relations.  It  remains  for  the 
year  nineteen  hxmdred  and  ten  to  make  that  code  binding  on  the  parties  by 
ratification,  after  which  the  natural  course  of  events  will  speedily  make  it 
the  binding  code  of  the  world. 

It  appeared  to  many  of  us,  indeed,  when  the  agreement  was 
reached  and  the  Conference  dissolved,  that  a  great  thing  had 
been  done  and  that  the  way  had  been  cleared  to  carry  into 
efifect  the  Prize  Court  Convention  and  to  establish  upon  a 
permanent  basis  the  judicial  settlement  of  this  class  of  inter- 
national controversies  through  the  application  of  an  accepted 
code  of  law. 

Unfortunately,  that  belief  has  not  been  justified.  An 
excited  controversy  immediately  arose  regarding  the  effect  of 
the  rules  contained  in  the  Declaration  of  London  upon  the 
interests  of  Great  Britain.  One  set  of  objectors  declared 
that  the  rules  sacrificed  the  interests  of  Great  Britain  as  a 
belligerent.  Another  set  asserted  that  the  rules  destroyed 
the  interests  of  Great  Britain  as  a  neutral.  Both  could  not 
be  true,  yet  each  set  of  objectors  continued  strenuously  to 
oppose  the  Declaration  upon  its  own  grounds. 

An  examination  of  the  arguments  on  both  sides  in  Great 

Britain  leads  to  the  conclusion  that  Mr.  Norman  Bent- 

wich  sums  up  the  controversy  fairly  when  he  says,  in  the 

Fortnightly  Review: 

Great  Britain  should  now  be  in  a  position  to  ratify  The  Hague  Prize 
Court  Convention,  when  at  least  she  has  made  the  necessary  changes  in  her 
national  prize  law.  She  has  come  out  very  well  indeed  from  the  interna- 
tional bargaining:  she  had  most  to  lose  by  the  previous  uncertainty;  she 
has  gained  most  by  the  settlement.  At  Paris,  in  1856,  she  gave  up  one  of 
her  most  powerful  belligerent  rights  —  the  right  to  capture  enemy  prop- 
erty in  neutral  ships.  Now  in  London  she  has  not  given  up  a  single  estab- 
lished belligerent  right  of  value,  her  sole  concession  being  on  the  question 


DECLARATION  OF  LONDON  83 

of  convoy  which  is  more  apparent  than  real;  and,  on  the  other  hand,  she 
has  gained  a  number  of  safe-guards  for  her  neutral  commerce,  and  a  num- 
ber of  limitations  of  the  alleged  belligerent  rights  of  other  powers.  There 
is  indeed  a  naval  school  which  is  bitterly  hostile  to  the  ratification  of  the 
Declaration,  on  the  ground  that  by  it  England  gives  up  certain  national 
claims  of  long  standing  and  concedes  certain  rights  against  which  she  has 
long  struggled.  But  the  claims  we  give  up  have  not  been  effectively  exer- 
cised by  us,  the  rights  we  concede  have  regularly  been  practised  against  us. 

Nevertheless  the  Prize  Court  Bill,  introduced  in  Parlia- 
ment to  give  effect  to  the  Convention  and  the  Declaration, 
passed  the  House  of  Commons  but  was  rejected  by  the  House 
of  Lords,  and  so  the  matter  stands. 

This  is  unfortunate  not  merely  because  the  rules  of  law 
contained  in  the  Declaration  are  wise  and  just  and  would  be 
beneficial  to  the  world,  but  because  the  most  promising  for- 
ward movement  toward  the  peaceable  settlement  of  iuter- 
national  disputes  is  frustrated  by  the  kind  of  treatment 
which,  if  persisted  in,  must  apparently  prevent  all  forward 
movement  in  the  same  line.  The  Prize  Court  Convention  is 
representative  of  the  general  movement  for  judicial  settle- 
ment. The  Declaration  of  London  is  representative  of  the 
agreement  upon  the  rules  of  international  law  which  is  essen- 
tial to  the  establishment  of  the  practice  of  judicial  settlement 
in  all  other  branches  of  international  controversy. 

For  some  time  past  there  has  been  a  growing  impression 
among  men  familiar  with  international  affairs  that  the 
obstacles  to  the  development  of  any  real  system  for  the  sub- 
mission of  international  disputes  to  impartial  decision  are  to 
be  found  not  so  much  in  the  unwillingness  of  nations  to  sub- 
mit their  disputes  to  such  a  decision,  but  in  the  lack  of 
adequate  machinery  through  which  such  decisions  may  be 
secured.  The  tendency  of  arbitrations  in  which  representa- 
tives of  the  disputing  countries  are  joined  with  eminent 
publicists  from  other  countries  for  the  determination  of 
international  controversies  is  not  to  decide  questions  of  fact 


84  INTERNATIONAL  SUBJECTS 

and  law,  but  it  is  to  negotiate  a  settlement.  Arbitrators  as 
a  rule  act  as  diplomatists  under  the  diplomatic  sense  of  hon- 
orable obligation  rather  than  as  judges  under  the  judicial 
sense  of  honorable  obligation.  Their  tendency  is  to  do 
what  they  think  is  wise  and.  for  the  best  interests  of 
all  concerned  and  to  get  the  controversy  disposed  of  in 
some  way  without  too  much  ill  feeling  upon  either  side. 
In  this  process  the  frequent  failure  of  international  law 
to  furnish  any  certahi  or  undisputed  guide  for  action 
affords  free  opportunity  for  the  personal  predilections  of 
the  arbitrator,  often  colored  or  determined  by  the  pre- 
vailing opinions  in  the  country  from  which  he  comes; 
and  these  opinions  are  often  quite  unlike  those  which  pre- 
vail among  the  people  of  either  of  the  disputing  countries. 
It  often  happens,  therefore,  that  the  selection  of  the  arbitra- 
tors is  the  most  critical  and  decisive  step  in  the  arbitration. 
It  is  very  difficult  to  apply  to  such  a  proceeding  the  analogy 
of  a  judicial  proceeding  under  municipal  law  for  the  trial  and 
decision  of  cases  between  private  litigants.  It  may  well  be 
that  countries  are  unwilling  to  have  their  interests  disposed 
of  in  that  way,  although  they  would  be  perfectly  ready  to 
submit  their  cases  to  the  decision  of  judges  acting  under  the 
judicial  sense  of  responsibility.  Many  of  us  are  convinced 
that  the  true  line  of  development  for  the  peaceable  settle- 
ment of  international  controversies  is  to  be  found  in  Ihe 
establishment  of  a  real  international  court  which  shall  hear 
and  determine  questions  instead  of  negotiating  a  settlement 
of  them.  This  question  was  much  discussed  in  The  Hague 
Conference  of  1907,  which  approved  and  recommended  to 
the  Powers  the  adoption  of  a  draft  convention  for  the  creation 
of  a  Judicial  Arbitral  Court  to  be  composed  of  judges  ap- 
pointed for  fixed  periods  with  stated  compensation  and 
chosen  from  persons  "  fulfilling  the  conditions  qualifying 
them  in  their  respective  coimtries  to  occupy  high  legal  posts. 


DECLARATION  OF  LONDON  85 

or  to  be  jurists  of  recognized  competence  in  matters  of  inter- 
national law."  The  procedure,  powers,  and  jurisdiction  of 
the  court  were  all  provided  for  and  the  draft  convention  as 
approved  by  the  Conference  was  defective  only  in  not  deter- 
mining how  the  judges  should  be  appointed.  The  determina- 
tion upon  this  matter  was  prevented  by  difference  of  opinion 
between  the  larger  and  the  smaller  powers  represented  in  the 
Conference.  The  provision  for  a  general  judicial  court  with 
jurisdiction  to  hear  and  determine  all  matters  of  international 
dispute  was  thus  carried  within  one  step  of  the  completeness 
which  was  reached  in  the  convention  for  the  International 
Prize  Court.  The  Prize  Court  thus  became  the  advance 
guard  of  the  proposed  judicial  system,  the  experiment  upon 
which  the  success  of  the  whole  plainly  depends.  President 
Roosevelt,  in  his  message  to  Congress  of  December  3,  1907, 
said  truly: 

Not  only  will  the  International  Prize  Court  be  the  means  of  protecting 
the  interest  of  neutrals,  but  it  is  in  itself  a  step  toward  the  creation  of  the 
most  general  court  for  the  hearing  of  international  controversies,  to  which 
reference  has  just  been  made.  The  organization  and  action  of  such  a  Prize 
Court  cannot  fail  to  accustom  the  different  coimtries  to  the  submission  of 
international  questions  to  the  decision  of  an  international  tribunal,  and  we 
may  confidently  expect  the  results  of  such  submission  to  bring  about  a 
general  agreement  upon  the  enlargement  of  the  practice. 

The  relations  between  the  project  for  the  Prize  Court  and 
the  project  for  the  general  Judicial  Arbitral  Court  are  so 
manifest  that  the  United  States  has  already  proposed  to  the 
other  Powers  an  enlargement  of  the  jurisdiction  of  the  Prize 
Court  so  that  any  question  between  the  signatory  Powers 
can  be  heard  and  determined  by  the  judges  of  the  Prize 
Court.  This  was  done  by  instructions  to  the  delegates  of  the 
United  States  at  the  London  Conference,  dated  February  6, 
1909,  by  an  identic  circular  note  to  the  Powers  represented 
at  that  Conference  dated  March  5,  1909,  and  by  a  formal 
communication  from  the  Department  of  State  to  the  Powers, 


86  INTERNATIONAL  SUBJECTS 

dated  October  18,  1909.  The  form  given  to  the  prop>osal  in 
the  last  mentioned  communication  from  the  American  State 
Department  was  that  there  should  be  — 

a  further  agreement  that  the  International  Court  of  Prize  established  by 
the  Convention  signed  at  The  Hague,  October  18,  1907,  and  the  judges 
thereof  shall  be  competent  to  entertain  and  decide  any  case  of  arbitration 
presented  to  it  by  a  signatory  of  the  International  Court  of  Prize,  and  that 
when  sitting  as  a  Court  of  Arbitral  Justice  the  said  International  Court  of 
Prize  shall  conduct  its  proceedings  in  accordance  with  the  draft  convention 
for  the  establishment  of  a  Court  of  Arbitral  Justice,  approved  and  recom- 
mended by  the  Second  Hague  Peace  Conference,  on  October  18, 1907. 

I  am  advised  that  this  propK)sal  was  favorably  received  and 
that  action  to  give  it  effect  in  some  practicable  form  only 
awaits  the  ratification  of  the  Prize  Court  Convention.  This 
line  of  advance  also  is  thus  blocked  by  the  failure  to  confirm 
the  Declaration  of  London. 

This  review  of  the  origin  and  nature  of  the  Declaration  of 
London  and  of  the  attendant  conditions  exhibits  the  true 
significance  of  the  Declaration.  It  is  not  merely  a  code  of 
useful  rules.  It  is  necessary  to  the  existence  of  the  Interna- 
tional Prize  Court  and  therefore  to  the  existence  of  any 
Judicial  Arbitral  Court.  It  is  the  one  indispensable  forward 
step  without  which  no  practical  progress  can  now  be  made  in 
the  further  development  of  a  system  of  peaceable  settlement 
of  international  disputes.  It  is  to  be  hoped  that  a  fuller 
realization  of  its  far-reaching  importance  will  soon  lead  to  its 
acceptance.  I  cannot  avoid  the  conviction  that  a  broad- 
minded  and  statesmanlike  treatment  of  this  constructive 
measure  for  practical  progress  in  international  relations,  is  of 
greater  value  than  merely  benevolent  but  academic  declara- 
tions in  favor  of  peace  which  are  to  be  found  in  general 
treaties  of  arbitration  and  in  diplomatic  correspondence  and 
in  public  speeches. 

Indeed  the  whole  practice  of  making  general  treaties  of 
arbitration  cannot  fail  to  be  discredited  by  the  failure,  if 


DECLARATION  OF  LONDON  87 

there  is  to  be  a  failure,  of  the  Prize  Court  Convention,  for 
the  cynical  are  sure  to  question  the  sincerity  of  general  trea- 
ties of  arbitration  covering  the  whole  field  of  international 
relations  between  nations  which  refuse  to  assent  to  this 
convention  covering  but  a  small  part  of  the  same  field. 


FRANCIS  LIBBER 

PRESroENTIAL  ADDRESS  AT  THE  SEVENTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  24,  1913 

THIS  year,  1913,  is  the  fiftieth  anniversary  of  a  very 
important  event  in  the  history  of  international  law  — 
the  adoption  and  enforcement  by  the  American  Government 
of  the  code  of  rules  governing  the  conduct  of  armies  in  the 
field,  which  is  known  to  the  American  army  as  General 
Orders  No.  100,  of  1863.  It  happens  that  without  any  inten- 
tion to  create  a  coincidence  the  seventh  annual  meeting  of 
the  American  Society  of  International  Law  is  appointed  and 
we  are  met  here,  exactly  fifty  years  after  the  twenty-fourth 
day  of  April,  1863,  when  President  Lincoln  promulgated 
that  famous  order.  It  seems  appropriate  for  this  Society  at 
this  time  to  celebrate  the  event  by  paying  honor  to  Francis 
Lieber,  the  author  of  the  instructions  embodied  in  the  order. 
In  the  early  stages  of  the  American  Civil  War  both  parties 
put  into  the  field  immense  armies,  commanded  for  the  most 
part  by  volunteer  officers  drawn  from  the  ordinary  occupa- 
tions of  civil  life  and  quite  ignorant  of  the  laws  and  usages  of 
war.  The  sources  of  information  were  to  be  found  only  in 
scattered  text-books  and  treatises,  most  of  them  in  foreign 
languages,  few  of  them  readily  accessible,  and  requiring  the 
painstaking  and  diligent  labor  of  the  student  to  search  out 
rules  which  were  at  the  best  subject  to  doubt  and  dispute. 
It  was  manifest  that  the  officers  of  the  Union  and  Confeder- 
ate armies  had  neither  time  nor  opportunity  to  enter  upon  an 
extended  study  of  the  international  laws  of  war,  and  that 
unless  some  one  indicated  to  these  uninstructed  and  un- 
trained combatants  what  was  and  what  was  not  permissible 

89 


90  mTERNATIONAL  SUBJECTS 

in  warfare,  the  conflict  would  be  waged  without  those  re- 
straints upon  the  savage  side  of  human  nature,  by  which 
modem  civilization  has  somewhat  mitigated  and  confined 
the  barbarous  cruelties  of  war.  Fortunately,  General  Hal- 
leck,  who  was  put  in  chief  command  of  the  Union  army  in 
July,  1862,  was  an  accomplished  student  of  international  law. 
He  had  already  published  an  excellent  book  on  that  subject. 
While  the  duties  of  commanding  general  during  an  active 
conflict  left  him  no  time  for  research  and  codification  himself, 
he  knew  what  ought  to  be  done  and  how  it  ought  to  be  done; 
and  he  called  Francis  Lieber,  then  a  professor  in  Columbia 
College,  and  already  a  pubhcist  distinguished  upon  both 
sides  of  the  Atlantic,  to  the  assistance  of  the  Government. 
The  first  service  which  Lieber  rendered  was  the  preparation 
in  1862  of  a  statement  or  essay  upon  GueriUa  Parties  Con- 
sidered wiih  Reference  to  the  Laws  and  Usages  of  War.  One 
cannot  read  this  paper  now,  with  its  definite  and  lucid  state- 
ments based  upon  groimds  of  reason  and  supported  by  his- 
torical reference,  without  feeling  that  it  must  have  been  a  real 
satisfaction  to  the  burdened  and  harassed  Union  authorities 
at  Washington  to  have  such  a  guide  in  dealing  with  the  mul- 
titude of  cases  continually  arising  in  that  debatable  land 
which  intervenes  between  disciplined  and  responsible  warfare 
on  the  one  hand  and  simple  robbery  and  murder  on  the  other. 
On  the  seventeenth  of  December,  1862,  by  order  of  Secre- 
tary Stanton,  a  board  was  created  "  to  propose  amendments 
or  changes  in  the  rules  and  articles  of  war  and  a  code  of  regu- 
lations for  the  government  of  armies  in  the  field  as  authorized 
by  the  laws  and  usages  of  war,"  and  this  board  was  made  up 
of  Francis  Lieber,  LL.D.,  and  four  volunteer  officers.  Gen- 
erals Hitchcock,  Cadwalader,  Hartsuff  and  Martindale. 
That  part  of  the  board's  work  which  consisted  of  preparing 
the  code  of  regulations  appears  to  have  been  committed  to 
Dr.  Lieber.    The  nature  of  the  field  upon  which  he  entered 


FRANCIS  LIEBER  91 

and  the  spirit  in  which  he  did  his  work  are  indicated  by 
Lieber's  letter  transmitting  the  result  to  General  Halleck, 
on  February  20,  1863: 

Here  is  the  project  of  the  code  I  was  charged  with  drawing  up.  I  am 
going  to  send  fifty  copies  to  General  Hitchcock  for  distribution,  and  I 
earnestly  ask  for  suggestions  and  amendments.  I  am  going  to  send  for 
that  purpose  a  copy  to  General  Scott,  and  another  to  Honorable  Horace 
Binney.  ...  I  have  earnestly  endeavored  to  treat  of  these  grave  topics 
conscientiously  and  comprehensively;  and  you,  well-read  in  the  literature 
of  this  branch  of  international  law,  know  that  nothing  of  the  kind  exists  in 
any  language.  I  had  no  guide,  no  ground- work,  no  text-book.  I  can  assure 
you,  as  a  friend,  that  no  coimselor  of  Justinian  sat  down  to  his  task  of  the 
Digest  with  a  deeper  feeling  of  the  gravity  of  his  labor,  than  filled  my 
breast  in  the  laying  down  for  the  first  time  such  a  code,  where  nearly 
everything  was  floating.  Usage,  history,  reason,  and  conscientiousness, 
a  sincere  love  of  truth,  justice  and  civilization  have  been  my  guides;  but 
of  course  the  whole  must  be  still  very  imperfect.  .  .  . 

Lieber's  estimate  of  the  work  and  of  the  occasion  for  it  is 
shown  in  a  letter  from  him  to  General  Halleck  of  May  20, 
1863: 

I  have  the  copy  of  General  Orders  100  which  you  sent  me.  The  generals 
of  the  board  have  added  some  valuable  parts;  but  there  have  also  been  a 
few  things  omitted,  which  I  regret.  As  the  order  now  stands,  I  think  that 
No.  100  will  do  honor  to  our  country.  It  will  be  adopted  as  a  basis  for 
similar  works  by  the  English,  French,  and  Germans.  It  is  a  contribution 
by  the  United  States  to  the  stock  of  common  civilization.  I  feel  almost 
sad  in  closing  this  business.  Let  me  hopje  it  will  not  put  a  stop  to  our  cor- 
respondence. I  regret  that  your  name  is  not  visibly  connected  with  this 
Code.  You  do  not  regret  it,  because  you  are  void  of  ambition,  —  to  a 
faulty  degree,  as  it  seems  to  me  ...  I  believe  it  is  now  time  for  you  to 
issue  a  strong  order,  directing  attention  to  those  paragraphs  in  the  Code 
which  prohibit  devastation,  demolition  of  private  property,  etc.  I  know 
by  letters  from  the  West  and  the  South,  written  by  men  on  our  side,  that 
the  wanton  destruction  of  property  by  our  men  is  alarming.  It  does  in- 
calculable injury.  It  demoralizes  our  troops;  it  annihilates  wealth  irre- 
coverably, and  makes  a  return  to  a  state  of  peace  more  and  more  difficult. 
Yom-  order,  though  impressive  and  even  sharp,  might  be  written  with 
reference  to  the  Code,  and  pointing  out  the  disastrous  consequences  of 
reckless  devastation,  in  such  a  manner  as  not  to  furnish  our  reckless 
enemy  with  new  argiunents  for  his  savagery. 


92  INTERNATIONAL  SUBJECTS 

The  instructions  comprise  one  hundred  and  fifty-seven 
articles.  The  scope  of  the  work  can  be  indicated  briefly  by 
stating  the  titles  of  the  ten  sections  in  which  the  articles  are 
grouped: 

Martial  Law;  Military  Jurisdiction;  Military  Necessity;  Retaliation. 

Public  and  Private  Property  of  the  Enemy;  Protection  of  Prisoners, 
and  especially  Women;  of  Religion,  the  Arts  and  Sciences  —  Punishment 
of  Crimes  Against  the  Inhabitants  of  Hostile  Countries. 

Deserters;  Prisoners  of  War;  Hostages;  Booty  on  the  Battlefield. 

Partisans;  Armed  Enemies  not  Belonging  to  Hostile  Armies;  Scouts; 
Armed  Prowlers;  War  Rebels. 

Safe  Conduct;  Spies;  War  Traitors;  Captured  Messengers;  Abuse  of 
the  Flag  of  Truce. 

Exchange  of  Prisoners;  Flags  of  Truce;  Flags  of  Protection. 

The  Parole. 

Armistice  —  Capitulation. 

Assassination. 

Insurrection;  Civil  War;  Rebellion. 

The  provisions  on  these  subjects  give  evidence  of  great  learn- 
ing and  careful  consideration.  They  cover  the  entire  his- 
torical field  of  questions  which  had  arisen  and  the  possibilities 
of  questions  likely  to  arise,  calling  for  instruction  and  direc- 
tion. The  definitions  are  clear,  the  injunctions  and  prohi- 
bitions distinct  and  unambiguous,  and,  while  the  instrument 
was  a  practical  presentation  of  what  the  laws  and  usages 
of  war  were,  and  not  a  technical  discussion  of  what  the 
writer  thought  they  ought  to  be,  in  all  its  parts  may  be 
discerned  an  instinctive  selection  of  the  best  and  most  hu- 
mane practice  and  an  assertion  of  the  control  of  morals  to 
the  hmit  permitted  by  the  dreadful  business  in  which  the 
rules  were  to  be  appUed. 

These  instructions  directed  the  action  of  the  Union  oflficers 
and  controlled  the  conduct  of  the  Union  forces  during  that 
great  war  which  ended  in  the  triumph  of  the  armies  on  which 
their  limitations  were  imposed.  No  one  can  say  how  far  it 
was  due  to  the  instructions,  but  in  honoring  the  memory  of 


FRANCIS  LIEBER  93 

Francis  Lieber  we  should  not  forget  that  after  the  surrender 
and  the  triumph  came  reconcihation,  friendship,  the  restora- 
tion of  a  united  country,  and,  beyond  all  human  experience, 
even  within  the  lifetime  of  the  generation  which  had  waged 
the  conflict,  freedom  from  the  bitterness  of  spirit  that  time 
cannot  soften. 

Although  the  instructions  were  prepared  for  use  in  a  civil 
war,  a  great  part  of  them  were  of  general  application,  and 
they  were  adopted  by  the  German  Government  for  the  con- 
duct of  its  armies  in  the  field  in  the  war  of  1870  with  France. 
It  is  interesting  that  this  work  of  a  simple  private  citizen 
should  become  the  law  controlling  the  mightiest  forces  of 
both  the  country  of  his  adoption  and  the  country  of  his  birth. 
The  sanction  of  two  powerful  governments  for  these  rules  and 
their  successful  employment  in  two  of  the  greatest  wars  of 
modem  times  gave  to  them  an  authority  never  before  ac- 
quired by  any  codification  or  statement  of  any  considerable 
number  of  rules  intended  for  international  application.  The 
prediction  of  Lieber  that  General  Orders  No.  100  would  do 
honor  to  our  country,  that  it  would  be  adopted  as  a  basis  for 
similar  works  by  the  English,  French,  and  Germans,  and 
that  it  would  be  a  contribution  by  the  United  States  to  the 
stock  of  common  civilization,  was  justified.  In  the  Brussels 
Conference  of  1874,  convened  at  the  instance  of  the  Emperor 
of  Russia  for  the  purpose  of  codifying  the  laws  and  customs  of 
war,  the  Russian  delegate,  Baron  Jomini,  as  president  of  the 
conference,  declared  that  the  project  of  an  international  con- 
vention then  presented  had  its  origin  in  the  rules  of  President 
Lincoln.  The  convention  agreed  upon  at  Brussels  was  not 
ratified,  but  in  1880  the  Institute  of  International  Law  made 
the  work  of  the  Brussels  Conference  and  the  work  of  Lieber, 
which  so  far  as  it  was  of  general  application  was  incorporated 
in  that  convention,  the  basis  of  a  manual  of  the  laws  of  war 
upon  land;   and  finally,  in  The  Hague  Conferences  of  1899 


94  INTERNATIONAL  SUBJECTS 

and  1907,  the  conventions  with  respect  to  the  laws  and  cus- 
toms of  war  on  land  gave  the  adherence  of  the  whole  civilized 
world  in  substance  and  effect  to  those  international  rules 
which  President  Lincoln  made  binding  upon  the  American 
armies  fifty  years  ago.  Writing  of  Lieber's  work,  Sheldon 
Amos  says  in  his  book  on  Political  and  Legal  Remedies  for 
War: 

The  instructions  were,  in  fact,  the  first  attempt  to  make  a  comprehen- 
sive survey  of  all  the  exigencies  to  which  a  war  of  invasion  is  likely  to  give 
rise;  and  it  is  said  on  good  authority  that,  with  one  exception  (that  of 
concealing  in  an  occupied  district  arms  or  provisions  for  the  enemy),  no 
case  presented  itself  diu-ing  the  Franco-German  War  of  1870  which  had 
not  been  provided  for  in  the  American  instructions. 

Frederic  de  Martens,  after  describing  the  way  in  which 

Lieber's  work  came  to  be  done,  says: 

So  it  is  to  the  United  States  of  North  America  and  to  President  Lincoln 
that  belongs  the  honor  of  having  taken  the  initiative  in  defining  with  pre- 
cision the  customs  and  laws  of  war.  This  first  official  attempt  to  codify 
the  customs  of  war  and  to  collect  in  a  code  the  rules  binding  upon  military 
forces  has  notably  contributed  to  impress  the  character  of  humanity  upon 
the  conduct  of  the  northern  states  in  the  course  of  that  war. 

Bluntschli  says,  in  his  article  on  Lieber*s  Service  to  Political 

Science  and  International  Law: 

The  Instructions  for  the  Government  of  Armies  of  the  United  States  in 
the  Field  were  drawn  up  by  Lieber  at  the  instance  of  President  Lincoln, 
and  formed  the  first  codification  of  International  Articles  of  War.  This 
was  a  deed  of  great  moment  in  the  history  of  international  law  and  civili- 
zation. Throughout  this  work  also  we  see  the  stamp  of  Lieber's  peculiar 
genius.  His  legal  injunctions  rest  upon  the  foundation  of  moral  precepts. 
The  former  are  not  always  sharply  distinguished  from  moral  injunctions, 
but  nevertheless,  through  a  union  with  the  same,  are  ennobled  and  exalted. 
Everywhere  reigns  in  this  body  of  law  the  spirit  of  humanity,  which  spirit 
recognizes  as  fellow-beings,  with  lawful  rights,  our  very  enemies,  and  which 
forbids  our  visiting  upon  them  unnecessary  injury,  cruelty,  or  destruction. 
But  at  the  same  time,  our  legislator  remains  fully  aware  that,  in  time  of 
war,  it  is  absolutely  necessary  to  provide  for  the  safety  of  armies  and  for 
the  successful  conduct  of  a  camp>aign;  that,  to  those  engaged  in  it,  the 
harshest  measures  and  most  reckless  exactions  cannot  be  denied;  and  that 


FRANCIS  LIEBER  95 

tender-hearted  sentimentality  is  here  all  the  more  out  of  place,  because  the 
greater  the  energy  employed  in  carrying  on  the  war,  the  sooner  wiU  it  be 
brought  to  an  end,  and  the  normal  condition  of  peace  restored. 

Then  follows  a  very  interesting  statement  by  Bluntschli 
which  points  out  a  consequence  of  the  instructions  not  the 
least  in  value  to  the  student  of  international  law  and  to  the 
development  of  that  science  upon  which  the  hoped-for  peace 
of  the  world  so  largely  depends.  It  appears  that  Bluntschli 
found  in  Lieber's  work  the  inspiration  of  his  celebrated 
codification  of  international  law,  for  he  says: 

These  instructions  prepared  by  Lieber,  prompted  me  to  draw  up,  after 
his  model,  first,  the  laws  of  war,  and  then,  in  general,  the  law  of  nations,  in 
the  form  of  a  code,  or  law  book,  which  should  express  the  present  state  of 
the  legal  consciousness  of  civilized  peoples. 

Professor  Ernest  Nys  sums  up  the  far-reaching  effect  of 
Lieber's  codification  by  the  statement: 

The  ideas  of  the  American  publicist  have  penetrated  not  only  the  scien- 
tific world  through  the  works  of  Bluntschli,  but  by  the  work  of  the  Con- 
ference of  Brussels,  in  1874,  and  The  Hague  in  1899  and  1907,  they  have 
penetrated  international  politics. 

When  we  recall  the  frightful  cruelties  upon  combatants, 
upon  prisoners,  upon  citizens,  the  overturning  of  all  human 
rights  to  life  and  liberty  and  property,  the  fiendish  malignity 
of  oppression  by  brutal  force,  which  have  characterized  the 
history  of  war,  we  cannot  fail  to  set  a  high  estimate  upon  the 
service  of  the  man  who  gave  form  and  direction  and  effective- 
ness to  the  civilizing  movement  by  which  man  at  his  best, 
through  the  concurrence  of  nations,  imposes  the  restraint  of 
rules  of  right  conduct,  upon  man  at  his  worst,  in  the  extreme 
exercise  of  force. 

Let  me  say  something  about  the  man  himself.  He  was 
born  in  Berlin  on  March  18, 1800.  His  childhood  was  passed 
in  those  distressful  times  when  the  declaration  of  the  rights  of 
man  and  the  great  upheaval  of  the  French  Revolution  had 


96  INTERNATIONAL  SUBJECTS 

inspired  throughout  the  continent  of  Europe  a  conception  of 
popular  liberty  and  awakened  a  strong  desire  to  attain  it, 
while  the  people  of  Prussia  were  held  in  the  strictest  subjec- 
tion to  an  autocratic  government  of  inveterate  and  uncom- 
promising traditions.  In  the  meantime  foreign  conquest, 
with  the  object  lessons  of  Jena  and  Friedland  and  the  Confed- 
eration of  the  Rhine,  threatened  the  destruction  of  national 
independence;  and  love  of  country  urged  Germans  to  the 
support  of  a  government  which  the  love  of  hberty  lu-ged 
them  to  condemn.  It  was  one  of  the  rare  periods  in  which 
political  ideas  force  themselves  into  the  thought  and  feeling 
of  every  intelUgent  life,  and,  alongside  with  the  struggle  for 
subsistence,  the  average  man  finds  himself  driven  by  a  sense 
of  necessity  into  a  struggle  for  liberty,  opportunity,  peace, 
order,  security  for  life  and  property  —  things  which  in  ordi- 
nary times  he  vaguely  assumes  to  come  by  nature  like  the  air 
he  breathes.  So  the  early  ideas  of  the  child  were  filled  with 
deep  impressions  of  the  public  life  of  the  time.  He  remem- 
bered the  entry  of  Napoleon  into  Berlin  after  Jena.  He 
remembered  the  humiHation  of  the  peace  of  Tilsit.  He  re- 
membered Schill,  the  defender  of  Colberg,  and  Stein,  and 
Schamhorst.  He  was  a  disciple  of  Dr.  Jahn,  the  manual- 
trainer  of  German  patriotism.  At  fifteen,  after  the  escape 
from  Elba,  he  enlisted  in  the  Colberg  regiment  and  fought 
under  Bliicher  at  Waterloo.  He  was  seriously  wounded  in 
the  Battle  of  Namur  and  had  the  strange  and  vital  discipline 
of  lying  long  on  the  battlefield  in  expectation  of  death.  He 
was  a  member  of  patriotic  societies  and  was  arrested  in  his 
nineteenth  year,  and  imprisoned  four  months  on  suspicion  of 
dangerous  political  designs.  He  was  excluded  from  member- 
ship in  the  German  universities,  except  Jena,  where  he  re- 
ceived his  degree  of  Doctor  of  Philosophy  in  1820.  At 
twenty-one  he  made  his  way  to  Greece  with  a  company  of 
other  young  Germans,  inspired,  by  a  generous  enthusiasm 


FRANCIS  LIEBER  97 

for  liberty,  to  an  unavailing  attempt  to  aid  in  the  Greek  War 
of  Independence.  Returning  penniless  from  Greece  he  found 
his  way  to  Rome,  became  a  tutor  in  the  family  of  Barthold 
Georg  Niebuhr,  then  Prussian  Ambassador,  and  there  he 
won  the  confidence  and  lifelong  friendship  of  that  great  his- 
torian whose  influence  in  familiar  intercourse  both  increased 
the  learning  and  calmed  and  sobered  the  judgment  of  the 
impetuous  youth.  Returning  to  Prussia,  he  was  again 
arrested  and  imprisoned  for  nearly  a  year  upon  charges  of 
disaffection  to  the  government.  Released  through  the  inter- 
cession of  Niebuhr,  he  went  to  England,  and  after  a  year's 
hard  struggle  there,  he  came,  in  1827,  to  the  United  States 
and  to  Boston.  Seeking  employment  he  found  it  in  taking 
charge  of  the  Boston  Gymnasium.  Through  Niebuhr's  good 
oflSces  he  became  the  American  correspondent  of  a  group  of 
German  newspapers.  He  devised  a  plan  for  the  pubKcation 
of  an  encyclopedia,  and  for  this  he  secured  a  distinguished 
list  of  contributors  and  associates.  He  became  its  editor, 
and  in  1829  the  publication  of  the  Encyclopcedia  Americana 
was  begun.  It  was  a  distinct  success.  Lieber's  connection 
with  it  not  only  forced  him  to  a  broad  and  accurate  knowl- 
edge of  American  life,  but  brought  him  in  contact  with  a 
great  range  of  leaders  of  American  thought  and  opinion,  and 
this  association  gave  him  an  intimate  knowledge  of  American 
social  conditions  and  public  affairs.  Bancroft,  and  Hilliard, 
and  Everett,  and  Story,  and  Nicholas  Biddle,  and  Charles 
Sumner  were  among  his  friends.  In  June,  1835,  he  was  made 
Professor  of  History  and  Political  Economy  in  South  Caro- 
lina College,  and  for  twenty-two  years  he  held  that  chair, 
until,  in  1857,  he  was  called  to  Columbia  College  to  be  Pro- 
fessor of  Modem  History,  Political  Science,  International 
Law,  Civil  and  Common  Law.  His  connection  with  Colum- 
bia and  his  residence  in  New  York  continued  until  his  death 
in  October,  1872.    In  the  meantime,  to  the  service  as  adviser 


98  INTERNATIONAL  SUBJECTS 

to  the  Government,  which  I  have  already  described,  he  added 
the  classification  and  arrangement  of  the  Confederate  archives 
in  the  oflBce  of  the  War  Department,  and  long  served  as  um- 
pire under  the  Mexican  Claims  Commission  of  July  4,  1868. 
Lieber  himself  has  said  that  his  life  had  been  made  up  of 
|v      many  geological  layers.    The  transition  from  his  adventurous 
^     youth  to  the  life  of  an  American  college  professor  did  indeed 
carry  him  from  igneous  to  sedimentary  conditions.    Under 
the  new  conditions,  however,  his  surpassing  energy  and 
capacity  for  application  found  exercise  in  authorship.    His 
work  on  Political  Ethics,  published  in  1838,  and  that  on  Civil 
Liberty  and  Self  Government,  published  in  1853,  gave  him  high 
rank  among  writers  upon  the  philosophy  of  government. 
Judge  Story  said  of  the  former: 

It  contains  by  far  the  fullest  and  most  correct  development  of  the  true 
theory  of  what  constitutes  the  state  that  I  have  ever  seen.  It  abounds  with 
profound  views  of  government  which  are  illustrated  with  various  learning. 
To  me  many  of  the  thoughts  are  new,  and  striking  as  they  are  new.  I  do 
not  hesitate  to  say  that  it  constitutes  one  of  the  best  theoretical  treatises 
on  the  true  nature  and  objects  of  government  which  has  been  produced  in 
modern  times,  containing  much  for  instruction,  much  for  admonition,  and 
much  for  deep  meditation,  addressing  itself  to  the  wise  and  virtuous  of  all 
coimtries. 

And  in  an  introduction  to  the  latter  work,  Theodore  Dwight 
Woolsey  said: 

It  would  be  a  grateful  task  to  speak  at  length  here  of  the  service  Doctor 
Lieber  rendered  to  political  science  in  this  country.  .  .  .  He  was  indeed 
the  founder  of  this  science  in  this  country  in  so  far  as  by  his  method,  his 
fulness  of  historical  illustration,  his  noble,  ethical  feeling,  his  sound  practi- 
cal judgment,  which  was  of  the  English  rather  than  of  the  German  type, 
he  secured  readers  among  the  first  men  of  the  land,  influenced  p>olitical 
thought  more  than  anj'  one  of  his  contemporaries  in  the  United  States,  and 
made  I  think,  a  lasting  impression  on  many  students  who  were  forming 
themselves  for  the  work  of  life. 

By  a  great  variety  of  miscellaneous  essays,  addresses,  and 
magazine  articles  on  subjects  of  education,  penology,  history. 


FRANCIS  LIEBER  99 

biography,  constitutional,  and  international  law,  he  exercised 
a  powerful  influence  upon  the  development  of  American 
thought.  By  voluminous  correspondence  with  many  fore- 
most Americans  who  were  engaged  in  public  affairs  he  made 
his  influence  felt  upon  the  solution  of  specific  questions  in  the 
conduct  of  government.  A  correspondence  of  many  years 
with  Charles  Sumner  is  especially  rich  in  matter  of  this 
description. 

The  philosophical  habit  of  the  German,  the  practical  habit 
of  the  Englishman,  the  freedom  from  traditional  limitations 
upon  thought  of  the  American,  the  breadth  of  view  of  his 
cosmopolitan  experience,  the  intensity  of  his  enthusiasm  at 
once  for  liberty  and  for  order,  and  the  strength  of  his  genuine 
sympathy  for  all  mankind  combined  to  set  him  in  advance  of 
his  time  in  his  views  upon  international  law  and  his  proposals 
for  its  development.  We  find  him  writing  to  Sumner  on 
December  27,  1861,  after  the  Trent  Affair  —  more  than  fifty 
years  ago: 

This  would  be  a  fair  occasion  to  propose  a  congress  of  all  maritime 
nations,  Eiirop)ean  and  American,  to  settle  some  more  canons  of  the  law 
of  nations  than  were  settled  at  the  Peace  of  Paris,  —  canons  chiefly  or 
exclusively  relating  to  the  rights  and  duties  of  belligerents  and  neutrals  on 
the  sea;  for  there  lies  the  chief  diflficulty.  The  sea  belongs  to  all ;  hence  the 
diflBculty  of  the  sea  police,  because  there  all  are  equals.  I  mean  no  codi- 
fication of  international  law;  I  mean  that  such  a  congress,  avowedly  con- 
vened for  such  a  purp>ose,  should  take  some  more  canons  out  of  the  cloudy 
realm  of  precedents  than  the  Peace  of  Paris  did  almost  incidentally.  Sup- 
pose Russia,  Austria,  and  other  nations  (naming  them)  could  be  induced 
to  send,  each  power,  two  jurists  (with  naval  advisers  if  they  chose),  does 
any  one,  who  knows  how  swelling  civilization  courses  in  our  history,  doubt 
that  their  debates  and  resolutions  would  remain  useless,  —  even  though  the 
whole  should  lead,  this  time,  to  no  more  than  an  exjjeriment  ?  All  those 
ideas  that  are  now  great  and  large  blessings  of  our  race,  having  wrought 
themselves  into  constitutions  or  law.  systems,  belonged  once  to  Utopia. 

On  April  16,  1866,  he  writes  to  Bluntschli  in  Heidelberg: 

Your  intention  to  write  a  brief  code  on  the  Rights  of  Nations,  in  the 
middle  of  the  nineteenth  century,  is  a  noble  and  daring  one.    For  a  long 


100  INTERNATIONAL  SUBJECTS 

time  it  was  a  favorite  project  of  mine  that  four  or  five  of  the  most  distin- 
guished jiu-ists  should  hold  a  congress  in  order  to  decide  on  several  impor- 
tant but  still  imsettled  questions  of  national  equity,  and  i)erhaps  draw  up  a 
code.  First  I  proposed  that  it  should  be  an  official  congress  imder  the 
government,  and  corres|x)nded  with  Senator  Sumner  on  the  subject.  But 
after  a  while  it  became  clear  to  me  that  it  would  be  much  better  if  a  private 
congress  were  established,  whose  work  would  stand  as  an  authority  by  its 
excellence,  truthfulness,  justice,  and  superiority  in  every  respect. 

June  18,  1866,  to  his  wife: 

Have  you  read  the  noble  declaration  of  Prussia,  that  she  will  not  capture 
enemies'  property  at  sea  during  war  ?  Such  things  warm  one  like  a  glass 
of  Burgundy.  .  .  . 

December  15,  1866,  to  Andrew  D.  White: 

I  fancy  sometimes  —  but  only  fancy  —  how  fine  a  thing  it  would  be  for 
one  of  the  Peabodies,  or  some  such  gold  vessel,  to  give,  say  twenty-five 
thousand  dollars  gold,  for  the  holding  of  a  private  —  i.  e.,  not  diplomatic, 
although  international  —  congress  of  some  eight  or  ten  jurists,  to  concen- 
trate international  authority  and  combined  weight  on  certain  great  points, 
on  which  we  have  now  only  individual  authorities.  I  have  spoken  about 
this  years  ago  to  Mr.  Field. 

On  June  11,  1868,  to  Sumner: 

What  an  advance  it  would  be  —  though  requiring  nearly  twenty-two 
centiu"ies  —  from  the  time  when  Thucydides  said  that  private  property 
was  not  acknowledged  at  sea  as  on  land,  to  the  middle  of  the  nineteenth 
centiu-y,  when  private  property  —  even  of  the  enemy  —  should  be  de- 
clared to  be  protected,  even  floating  without  defence,  on  the  wide  sea.  .  .  . 
I  say  that  civilization  would  hardly  have  made  or  be  able  to  make  a  greater 
stride  in  our  century,  than  by  the  United  States  and  North  Germany 
agreeing  on  the  great  principle  and  thus  inducing  others  to  follow. 

On  May  7,  1869,  to  Judge  Thayer: 

The  strength,  authority,  and  grandeur  of  the  law  of  nations  rests  on, 
and  consists  in,  the  very  fact  that  reason,  justice,  equity,  speak  through 
men  '  greater  than  he  who  takes  a  city  '  —  single  men,  plain  Grotius; 
and  that  nations,  and  even  Congresses  of  Vienna,  cannot  avoid  hearing, 
acknowledging,  and  quoting  them.  But  it  has  ever  been,  and  is  still,  a 
favorite  idea  of  mine  that  there  should  be  a  congress  of  from  five  to  ten 
acknowledged  jurists  to  settle  a  dozen  or  two  of  important  yet  unsettled 
points  —  a  private  and  boldly  self-appointed  congress,  whose  whole  author- 
ity should  rest  on  the  inherent  truth  and  energy  of  their  own  proclama. 


FRANCIS  LIEBER  101 

On  April  10,  1872   to  General  Dufour,  honorary  president 

of  the  International  Committee  of  Geneva: 

One  of  far  the  most  effectual  and  beneficent  things  that,  at  this  very 
juncture,  could  be  done  for  the  promotion  of  the  intercoiu'se  of  nations  in 
peace  or  war  (and  there  is  intercourse  in  war,  since  man  cannot  meet  man 
without  intercourse)  —  one  of  the  most  promising  things  in  matters  of 
internationalism,  would  be  the  meeting  of  the  most  prominent  jurists  of 
the  law  of  nations,  of  our  Cis-Caucasian  race  —  one  from  each  country  in 
their  individual  and  not  in  any  public  capacity  —  to  settle  among  them- 
selves certain  great  questions  of  the  law  of  nations  as  yet  unsettled,  such 
as  neutrality,  or  the  aid  of  barbarians,  or  the  duration  of  the  claims  of 
obligations,  of  citizenship.  I  mean  settle  as  Grotius  settled,  —  by  the 
strength  of  the  great  argument  of  justice.  A  code  of  proclamation,  as  it 
were,  of  such  a  body,  would  soon  acquire  far  greater  authority  than  the 
book  of  the  greatest  single  jiu"ist.  I  hop>e  such  a  meeting  may  be  brought 
about  in  1874. 

On  May  26,  1872,  to  Von  Holtzendorff : 

In  1846,  in  one  of  my  writings,  I  recalled  the  fact  that  under  Adrian, 
professors  were  appointed  to  lecture  in  different  places,  and  Polemon  of 
Laodicea  instructed  in  oratory  at  Rome,  Laodicea,  Smyrna,  and  Alex- 
andria. The  traveling  professor  had  a  free  passage  on  the  emperor's  ships, 
or  on  the  vessels  laden  with  grain.  In  our  days  of  steamboats  and  railroads 
the  traveling  professor  should  be  reinstated.  Why  could  not  the  same 
person  teach  in  New  York  and  in  Strasburg  ? 

You  will  perceive  that  here  was  a  proposal  of  the  exchange 

professorship,  which  we  are  putting  in  practice  forty  years 

after.    Here  was  another  proposal  which  was  realized  by  the 

formation  of  the  Institute  of  International  Law.     Of  this 

Professor  Bluntschli  says: 

Lieber  had  great  influence,  I  may  add,  in  founding  the  Institut  de 
Droit  International,  which  was  started  in  Ghent,  in  1873,  and  forms  a  per- 
manent aUiance  of  leading  international  jurists  from  all  civilized  nations, 
for  the  purpKJse  of  working  harmoniously  together,  and  thus  serving  as  an 
organ  for  the  legal  consciousness  of  the  civilized  world.  Lieber  was  the 
first  to  propose  and  to  encourage  the  idea  of  professional  jurists  of  all 
nations  thus  coming  together  for  consultation,  and  seeking  to  establish  a 
conunon  imderstanding.  From  this  impulse  proceeded  Rolin-Jaequemyns' 
circular  letter,  drawn  up  in  Ghent,  calling  together  a  number  of  men  emi- 
nent for  their  learning.   This  latter  proposal  to  found  a  permanent  academy 


102  INTERNATIONAL  SUBJECTS 

Jot  International  Law  met  with  general  acceptance,  but  this  was  merely  a 
further  development  of  the  original  idea  of  Lieber,  which  was  at  the  bottom 
of  the  whole  scheme. 

Here  also  was  the  proposal  for  a  meeting  of  official  repre- 
sentatives which  was  the  precursor  of  the  conferences  at  The 
Hague.  It  is  interesting  to  observe  that  while  Lieber  con- 
sidered the  unofficial  meeting  to  be  an  alternative  for  the 
official  one,  both  have  been  realized,  and  in  practice  the  work 
of  the  unofficial  members  of  the  Institute  of  International 
Law  has  made  possible  the  success  of  the  official  conferences 
at  The  Hague,  by  preparing  their  work  beforehand  and 
agreeing  upon  conclusions  which  the  official  conferences 
could  accept. 

The  important  characteristic  which  marshaled  all  Lieber's 

forces  for  leadership  of  opinion  and  gave  his  work  its  chief 

and  permanent  value  was  an  elevation  of  spirit,  a  pervading 

moral  quaUty  which  was  refined  by  adversity  and  trial 

throughout  the  formative  period  of  his  life;  and  this  quality 

was  well  expressed  by  two  maxims  which  he  made  his  guides. 

He  says,  in  writing  to  Judge  Thayer: 

From  early  times  I  observed  that  in  the  French  Revolution  people  had 
always  clamored  for  rights  and  never  thought  of  duty;  that  more  or  less 
this  is  the  case  in  all  periods  of  agitation,  and  almost  universally  so  in  our 
own  times  and  in  our  country  .  .  .  right  and  duty,  both  together,  and  all 
is  well;  right  alone,  despjotism,  —  duty  alone,  slavery. 

And,  writing  to  Sumner,  he  says: 

Let  me  now  give  you  what  I  consider  my  chief  law  maxim:  Nullum  jus 
sine  officio,  nullum  qffidum  sine  jure,  —  forgotten  by  despot  and  Rouge 
(they  want  nothing  but  rights),  forgotten  by  the  slave  who  thinks  he  has 
nothing  but  duty  or  obligation. 

And  this  he  condensed  into  the  maxim:  "  Droit  oblige." 

The  other  maxim  he  kept  displayed  on  the  walls  of  his 
lecture  room:  ^*  Patria  Cara:  Carior  Libertas:  Veritas 
Carissima."  And  these  maxims  he  exemplified  in  his  life 
and  in  his  service  to  mankind. 


FBANCIS  LIEBER  103 

He  was  no  dry  student  delving  for  knowledge  he  could  not 
use;  but  a  living  soul  instinct  with  human  sympathy  and 
love  of  Hberty  and  justice,  seizing  eagerly  the  weapons  of 
learning  to  strike  blows  in  the  struggle  for  nobler  and  happier 
life  among  men.  He  was  no  vapid  theorist  who  *  argued 
about  it  and  about,  but  evermore  came  out  by  the  same 
door  where  in  he  went,'  but  a  sagacious,  practical  man  among 
men,  dealing  with  human  natm-e  as  it  was,  with  all  its  weak- 
ness and  folly  and  error,  all  its  nobility  and  power;  and  seek- 
ing to  shape  the  human  material  upon  which  he  wrought  to 
its  best  uses  according  to  its  real  capacity  and  strength. 

It  was  a  wonderful  career.  It  was  a  great  thing  to  be  the 
author  of  the  Instructions.  It  was  a  great  thing  to  give  the 
impetus  which  produced  the  Institut  de  Droit  International 
and  made  possible  the  success  of  the  Hague  Conferences.  It 
was  a  great  thing  to  be  the  man  he  was  and  to  live  a  long  life, 
loving  learning  and  law,  and  Hberty,  and  country,  and  kind, 
and  blessed  by  consciousness  of  distinguished  service  to  them 
all.  It  stirs  the  imagination  that  the  boy  who  lay  wounded 
on  the  battlefield  of  Namur  for  his  country's  sake  and  who 
languished  in  prison  for  liberty's  sake  and  who  left  his  native 
land  that  he  might  be  free,  should  build  his  life  into  the 
structure  of  American  self-government  and  leave  a  name 
honored  by  scholars  and  patriots  the  world  over. 

If  our  Society,  at  once  national  and  international,  were 
about  to  choose  a  patron  saint,  and  the  roll  were  to  be  called, 
my  voice  for  one  would  answer  "  Francis  Lieber." 


THE  REAL  MONROE  DOCTRINE 

PRESroENTIAL  ADDRESS  AT  THE  EIGHTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON.  APRIL  22.  1914 

I  ASK  your  attention  for  a  few  minutes  to  some  observa- 
tions upon  the  Monroe  Doctrine.  If  I  am  justified  in 
taking  your  time  it  will  be  not  because  I  say  anything  novel, 
but  because  there  is  occasion  for  restating  well-settled  mat- 
ters which  seem  to  have  been  overlooked  in  some  recent 
writings  on  the  subject. 

We  are  all  familiar  with  President  Monroe's  famous 
message  of  December  2, 1823: 

The  occasion  has  been  judged  proper  for  asserting  as  a  principle  in 
which  the  rights  and  interests  of  the  United  States  are  involved,  that  the 
American  Continents,  by  the  free  and  independent  condition  which  they 
have  assumed  and  maintain,  are  henceforth  not  to  be  considered  as 
subjects  for  future  colonization  by  any  European  Powers.  .  .  . 

In  the  wars  of  the  European  Powers  in  matters  relating  to  themselves 
we  have  never  taken  any  part,  nor  does  it  comport  with  our  policy  to  do 
so.  It  is  only  when  oiu*  rights  are  invaded  or  seriously  menaced  that  we 
resent  injuries  or  make  prep>aration  for  our  defense.  With  the  move- 
ments in  this  hemisphere  we  are  of  necessity  more  immediately  connected 
and  by  causes  which  must  be  obvious  to  all  enlightened  and  impartial 
observers. 

We  owe  it,  therefore,  to  candor,  and  to  the  amicable  relations  existing 
between  the  United  States  and  those  Powers,  to  declare  that  we  shoiJd 
consider  any  attempt  on  their  part  to  extend  their  system  to  any  p)ortion 
of  this  hemisphere  as  dangerous  to  our  peace  and  safety.  With  the  exist- 
ing colonies  or  dependencies  of  any  European  Power  we  have  not  inter- 
fered and  shall  not  interfere.  But  with  the  governments  who  have  de- 
clared their  independence  and  maintained  it,  and  whose  indep)endence  we 
have  on  great  consideration  and  on  just  principles,  acknowledged,  we  could 
not  view  any  interposition  for  the  purpose  of  oppressing  them,  or  control- 
ling in  any  other  manner,  their  destiny,  by  any  European  Power,  in  any 
other  Ught  than  as  the  manifestation  of  an  unfriendly  disposition  toward 

105 


106  INTERNATIONAL  SUBJECTS 

the  United  States.  In  the  war  between  these  new  governments  and  Sjiain 
we  declared  our  neutrality  at  the  time  of  their  recognition,  and  to  this  we 
have  adhered  and  shall  continue  to  adhere,  provided  no  change  shall  occur 
which,  in  the  judgment  of  the  competent  authorities  of  this  government, 
shall  make  a  corresponding  change  on  the  part  of  the  United  States 
indispensable  to  their  security.  .  .  . 

It  is  impossible  that  the  allied  Powers  should  extend  their  political 
system  to  any  p>ortion  of  either  continent  without  endangering  our  peace 
and  happiness;  nor  can  any  one  believe  that  oiu*  southern  brethren,  if  left 
to  themselves,  woidd  adopt  it  of  their  own  accord.  It  is  equally  imp>ossible, 
therefore,  that  we  should  behold  such  interp)osition,  in  any  form,  with 
indifference. 

The  occasion  for  these  declarations  is  a  familiar  story  — 
the  revolt  of  the  Spanish  provinces  in  America  which  Spain, 
miaided,  was  plainly  unable  to  reduce  to  their  former  condi- 
tion of  dependence;  the  reaction  against  liberalism  in  Europe 
which  followed  the  downfall  of  Napoleon  and  the  restoration 
of  the  Bourbons  to  the  throne  of  France;  the  formation  of 
the  Holy  Alliance;  the  agreement  of  its  members  at  the  Con- 
ferences of  Aix-la-Chapelle  and  Laybach  and  Verona  for  the 
insurance  of  monarchy  against  revolution;  the  restoration  of 
Ferdinand  the  Seventh  to  the  throne  of  Spain  by  the  armed 
power  of  France  pursuant  to  this  agreement;  the  purpose  of 
the  AlKance  to  follow  the  restoration  of  monarchy  in  Spain 
by  the  restoration  of  that  monarchy's  control  over  its  colonies 
in  the  New  World;  the  claims  both  of  Russia  and  of  Great 
Britain  to  rights  of  colonization  on  the  northwest  coast;  the 
proposals  of  Mr.  Canning  to  Richard  Rush  for  a  joint 
declaration  of  principles  by  England  and  the  United  States 
adverse  to  the  interference  of  any  other  European  Power  in 
the  contest  between  Spain  and  her  former  colonies;  the 
serious  question  raised  by  this  proposal  as  to  the  effect  of  a 
joint  declaration  upon  the  American  policy  of  avoiding 
entangling  aUiances. 

The  form  and  phrasing  of  President  Monroe's  message 
were  adapted  to  meet  these  conditions.     The  statements 


THE  REAL  MONROE  DOCTRINE  107 

made  were  intended  to  carry  specific  information  to  the 
members  of  the  Holy  Alliance  that  an  attempt  by  any  of 
them  to  coerce  the  new  states  of  South  America  would  be 
not  a  simple  expedition  against  weak  and  disunited  colonies, 
but  the  much  more  difficult  and  expensive  task  of  dealing 
with  the  formidable  maritime  power  of  the  United  States  as 
well  as  the  opposition  of  England,  and  they  were  intended 
to  carry  to  Russia  and  incidentally  to  England  the  idea  that 
rights  to  territory  in  the  New  World  must  thenceforth  rest 
upon  then  existing  titles,  and  that  the  United  States  would 
dispute  any  attempt  to  create  rights  to  territory  by  future 
occupation. 

It  is  undoubtedly  true  that  the  specific  occasions  for  the 
declaration  of  Monroe  no  longer  exist.  The  Holy  Alliance 
long  ago  disappeared.  The  nations  of  Europe  no  longer 
contemplate  the  vindication  of  monarchical  principles  in 
the  territory  of  the  New  World.  France,  the  most  active  of 
the  Allies,  is  herself  a  republic.  No  nation  longer  asserts  the 
right  of  colonization  in  America.  The  general  establishment 
of  diplomatic  relations  between  the  Powers  of  Europe  and 
the  American  republics,  if  not  already  universal,  became  so 
when,  pursuant  to  the  formal  assent  of  the  Powers,  all  the 
American  republics  were  received  into  the  Second  Conference 
at  The  Hague  and  joined  in  the  conventions  there  made, 
upon  the  footing  of  equal  sovereignty,  entitled  to  have  their 
territory  and  independence  respected  under  that  law  of 
nations  which  formerly  existed  for  Europe  alone. 

The  declaration,  however,  did  more  than  deal  with  the 
specific  occasion  which  called  it  forth.  It  was  intended  to 
declare  a  general  principle  for  the  future,  and  this  is  plain  not 
merely  from  the  generality  of  the  terms  used  but  from  the 
discussions  out  of  which  they  arose  and  from  the  understand- 
ing of  the  men  who  took  part  in  the  making  and  of  their 
successors. 


108  INTERNATIONAL  SUBJECTS 

When  Jefiferson  was  consulted  by  President  Monroe  before 
the  message  was  sent  he  replied: 

The  question  presented  by  the  letters  you  have  sent  me  is  the  most 
momentous  which  has  ever  been  offered  to  my  contemplation  since  that 
of  independence.  That  made  us  a  nation;  this  sets  our  compass  and 
points  the  coiu-se  which  we  are  to  steer  through  the  ocean  of  time  opening 
on  us.  And  never  could  we  embark  upon  it  under  circumstances  more 
auspicious.  Our  first  and  fundamental  maxim  should  be,  never  to  en- 
tangle ourselves  in  the  broils  of  Europe;  our  second,  never  to  suffer  Europe 
to  intermeddle  with  cis-atlantic  affairs. 

Three  years  later  Daniel  Webster  declared  that  the  doc- 
trine involved  the  honor  of  the  country.  He  said  in  the 
House  of  Representatives: 

I  look  upon  it  as  a  part  of  its  treasures  of  reputation;  and,  for  one,  I 
intend  to  guard  it.  .  .  .  I  will  neither  help  to  erase  it  or  tear  it  out;  nor 
shall  it  be,  by  any  act  of  mine,  blurred  or  blotted.  It  did  honor  to  the 
sagacity  of  the  government,  and  will  not  diminish  that  honor. 

Mr.  Cleveland  said  in  his  message  of  December  17,  1895: 

The  doctrine  up>on  which  we  stand  is  strong  and  sound  because  its  en- 
forcement is  important  to  our  peace  and  safety  as  a  nation,  and  is  essential 
to  the  integrity  of  our  free  institutions  and  the  tranquil  maintenance  of  our 
distinctive  form  of  government.  It  was  intended  to  apply  to  every  stage  of 
our  national  life  and  cannot  become  obsolete  while  our  republic  endures. 

As  the  particular  occasions  which  called  it  forth  have 
shpped  back  into  history,  the  declaration  itself,  instead  of 
being  handed  over  to  the  historian,  has  grown  continually  a 
more  vital  and  insistent  rule  of  conduct  for  each  succeeding 
generation  of  Americans.  Never  for  a  moment  have  the 
responsible  and  instructed  statesmen  in  charge  of  the  foreign 
affairs  of  the  United  States  failed  to  consider  themselves 
bound  to  insist  upon  its  policy.  Never  once  has  the  public 
opinion  of  the  people  of  the  United  States  failed  to  support 
every  just  application  of  it  as  new  occasion  has  arisen. 
Almost  every  President  and  Secretary  of  State  has  restated 
the  doctrine  with  vigor  and  emphasis  in  the  discussion  of  the 


THE  REAL  MONROE  DOCTRINE  109 

diplomatic  affairs  of  his  day.  The  governments  of  Europe 
have  gradually  come  to  realize  that  the  existence  of  the 
poHcy  which  Monroe  declared  is  a  stubborn  and  continuing 
fact  to  be  recognized  in  their  controversies  with  American 
countries.  We  have  seen  Spain,  France,  England,  Germany, 
with  admirable  good  sense  and  good  temper,  explaining 
beforehand  to  the  United  States  that  they  intended  no  per- 
manent occupation  of  territory,  in  the  controversy  with 
Mexico  forty  years  after  the  declaration,  and  in  the  contro- 
versy with  Venezuela  eighty  years  after.  In  1903  the  Duke 
of  Devonshire  declared  "  Great  Britain  accepts  the  Monroe 
Doctrine  imreservedly."  Mr.  Hay  coupled  the  Monroe 
Doctrine  and  the  Golden  Rule  as  cardinal  guides  of  American 
diplomacy.  Twice  within  very  recent  years  the  whole 
treaty-making  power  of  the  United  States  has  given  its  for- 
mal approval  to  the  policy  by  the  reservations  in  the  signa- 
ture and  in  the  ratification  of  the  arbitration  conventions  of 
The  Hague  Conferences,  expressed  in  these  words  by  the 
Senate  resolution  agreeing  to  ratification  of  the  convention 
of  1907: 

Nothing  contained  in  this  convention  shall  be  so  construed  as  to  require 
the  United  States  of  America  to  depart  from  its  traditional  policy  of  not 
intruding  upon,  interfering  with,  or  entangling  itself  in  the  political  ques- 
tions of  policy  or  internal  administration  of  any  foreign  state,  nor  shall 
anything  contained  in  the  said  convention  be  construed  to  imply  a  re- 
linquishment by  the  United  States  of  its  traditional  attitude  towards 
purely  American  questions. 

It  seems  fair  to  assume  that  a  policy  with  such  a  history 
as  this  has  some  continuing  and  substantial  reason  under- 
lying it;  that  it  is  not  outworn  or  meaningless  or  a  purely 
formal  relic  of  the  past,  and  it  seems  worth  while  to  consider 
carefully  what  the  doctrine  is  and  what  it  is  not. 

No  one  ever  pretended  that  Mr.  Monroe  was  declaring  a 
rule_pf  international  law  or  that  the  doctrine  which  he  de- 
clared has  become  international  law.    It  is  a  declaration  of 


110  INTERNATIONAL  SUBJECTS 

the  United  States  that  certain  acts  would  be  injurious  to  the 
peace  and  safety  of  the  United  States  and  that  the  United 
States  would  regard  them  as  unfriendly.  The  declaration 
does  not  say  what  the  course  of  the  United  States  will  be  in 
case  such  acts  are  done.  That  is  left  to  be  determined  in 
each  particular  instance.  Mr.  Calhoun  said,  in  the  Senate 
debate  on  the  Yucatan  Bill,  in  1848: 

Whether  you  will  resist  or  not  and  the  measure  of  your  resistance  — 
whether  it  shall  be  by  negotiation,  remonstrance,  or  some  intermediate 
measure,  or  by  a  resort  to  arms;  all  this  must  be  determined  and  decided 
on  the  merits  of  the  question  itself.  This  is  the  only  wise  course.  .  .  . 
There  are  cases  of  interposition  where  I  would  resort  to  the  hazard  of  war 
with  all  its  calamities.  Am  I  asked  for  one  ?  I  will  answer.  I  designate 
the  case  of  Cuba. 

In  particidar  instances  indeed  the  course  which  the  United 
States  would  follow  has  been  very  distinctly  declared,  as 
when  Mr.  Seward  said,  in  1865: 

It  has  been  the  President's  purpose  that  France  should  be  respect- 
fully informed  up)on  two  points;  namely,  first,  that  the  United  States 
earnestly  desire  to  continue  and  to  cultivate  sincere  friendship  with 
France.  Secondly,  that  this  poUcy  would  be  brought  in  imminent  jeopardy 
imless  France  could  deem  it  consistent  with  her  honor  to  desist  from  the 
prosecution  of  armed  intervention  in  Mexico  to  overthrow  the  domestic 
repubUcan  government  existing  there  and  to  establish  upon  its  ruins  the 
foreign  monarchy  which  has  been  attempted  to  be  inaugurated  in  the 
capital  of  that  country. 

So  Secretary  Buchanan  said,  in  1848: 

The  highest  and  first  duty  of  every  independent  nation  is  to  provide  for 
its  own  safety;  and  acting  up)on  this  principle,  we  should  be  compelled  to 
resist  the  acquisition  of  Cuba  by  any  powerful  maritime  state,  with  all 
means  which  Providence  has  placed  at  our  conmiand. 

And  Secretary  Clayton  said,  in  1849 : 

The  news  of  the  cession  of  Cuba  to  any  foreign  Power  would  in  the 
United  States  be  the  instant  signal  for  war.  No  foreign  Power  would 
attempt  to  take  it  that  did  not  expect  a  hostile  collision  with  us  as  an 
inevitable  consequence. 


THE  REAL  MONROE  DOCTRINE  111 

The  Hnptrvngjs^TiQt  iTitftmational  law  hnivrhj^tsjipnTi  the 
righfof  self-protgction  and  that  right  is^ecognized  by  inter- 
nationaTIaw^The  right  is  a  necessary  corollary  of  independ- 
ent sovereignty.  It  is  well  understood  that  the  exercise  of 
the  right  of  self -protection  may  and  frequently  does  extend 
in  its  effect  beyond  the  limits  of  the  territorial  jurisdiction  of 
the  state  exercising  it.  The  strongest  example  probably 
would  be  the  mobilization  of  an  army  by  another  Power 
immediately  across  the  frontier.  Every  act  done  by  the 
other  Power  may  be  within  its  own  territory.  Yet  the  coun- 
try threatened  by  the  state  of  facts  is  justified  in  protecting 
itself  by  immediate  war.  The  most  common  exercise  of  the 
right  of  self -protection  outside  of  a  state's  own  territory  and 
in  time  of  peace  is  the  interposition  of  objection  to  the  occu- 
pation of  territory,  of  points  of  strategic  miUtary  or  maritime 
advantage,  or  to  indirect  accomplishment  of  this  effect  by 
dynastic  arrangement.  For  example,  the  objection  of  Eng- 
land in  1911  to  the  occupation  of  a  naval  station  by  Germany 
on  the  Atlantic  coast  of  Morocco;  the  objection  of  the  Euro- 
pean Powers  generally  to  the  vast  force  of  Russia  extending 
its  territory  to  the  Mediterranean;  the  revision  of  the  Treaty 
of  San  Stefano  by  the  Treaty  of  Berlin;  the  establishment  of 
buffer  states;  the  objection  to  the  succession  of  a  German 
prince  to  the  throne  of  Spain;  the  many  forms  of  the  Eastern 
question;  the  centuries  of  struggle  to  preserve  the  balance  of 
power  in  Europe;  all  depend  upon  the  very  same  principle 
which  underlies  the  Monroe  Doctrine;  that  is  to  say,  upon 
the  right  of  every  sovereign  state  to  protect  itself  by  prevent- 
ing a  condition  of  affairs  in  which  it  will  be  too  late  to  protect 
itself.  Of  coiu'se  each  state  must  judge  for  itself  when  a 
threatened  act  will  create  such  a  situation.  If  any  state 
objects  to  a  threatened  act  and  the  reasonableness  of  its 
objection  is  not  assented  to,  the  efficacy  of  the  objection  will 
depend  upon  the  power  behind  it. 


112  INTERNATIONAL  SUBJECTS 

It  is  doubtless  true  that  in  the  adherence  of  the  American 
people  to  the  original  declaration  there  was  a  great  element  of 
sentiment  and  of  sympathy  for  the  people  of  South  America 
who  were  struggling  for  freedom,  and  it  has  been  a  source  of 
great  satisfaction  to  the  United  States  that  the  course  which 
it  took  in  1823  concurrently  with  the  action  of  Great  Britain 
played  so  great  a  part  in  assuring  the  right  of  self-govern- 
ment to  the  countries  of  South  America.  Yet  it  is  to  be 
observed  that  in  reference  to  the  South  American  govern- 
ments, as  in  all  other  respects,  the  international  right  upon 
which  the  declaration  expressly  rests  is  not  sentiment  or 
sympathy  or  a  claim  to  dictate  what  kind  of  government  any 
other  country  shall  have,  but  the  safety  of  the  United  States. 
It  is  because  the  new  governments  cannot  be  overthrown  by 
the  allied  Powers  "  without  endangering  our  peace  and 
happiness  ",  that  *'  the  United  States  cannot  behold  such 
interposition  in  any  form  with  indifference." 

We  frequently  see  statements  that  the  doctrine  has  been 
changed  or  enlarged;  that  there  is  a  new  or  different  doctrine 
since  Monroe's  time.  They  are  mistaken.  There  has  been 
no  change.  One  apparent  extension  of  the  statement  of 
Monroe  was  made  by  President  Polk  in  his  messages  of  1845 
and  1848,  when  he  included  the  acquisition  of  territory  by  a 
European  Power  through  cession  as  dangerous  to  the  safety 
of  the  United  States.  It  was  really  but  stating  a  corollary  to 
the  doctrine  of  1823  and  asserting  the  same  right  of  self- 
protection  against  the  other  American  states  as  well  as 
against  Europe. 

This  corollary  has  been  so  long  and  uniformly  agreed  to  by 
the  Government  and  the  people  of  the  United  States  that  it 
may  fairly  be  regarded  as  being  now  a  part  of  the  doctrine. 

But,  all  assertions  to  the  contrary  notwithstanding,  there 
has  been  no  other  change  or  enlargement  of  the  Monroe 
Doctrine  since  it  was  first  promulgated.    It  must  be  remem- 


THE  REAL  MONROE  DOCTRINE  113 

bered  that  not  everything  said  or  written  by  Secretaries  of 
State  or  even  by  Presidents  constitutes  a  national  policy  or 
can  enlarge  or  modify  or  diminish  a  national  policy.  It  is 
the  substance  of  the  thing  to  which  the  nation  holds,  and 
that  is  and  always  has  been  that  the  safety  of  the  United 
States  demands  that  American  territory  shall  remain 
American. 

The  Monroe  Doctrine  does  not  assert  or  imply  or  involve 
any  right  on  the  part  of  the  United  States  to  impair  or  con- 
trol the  independent  sovereignty  of  any  American  state.  In 
the  lives  of  nations  as  of  individuals,  there  are  many  rights 
unquestioned  and  universally  conceded.  The  assertion  of 
any  particular  right  must  be  considered,  not  as  excluding  all 
others  but  as  coincident  with  all  others  which  are  not  incon- 
sistent. The  fundamental  principle  of  international  law  is 
the  principle  of  independent  sovereignty.  Upon  that  all 
other  rules  of  international  law  rest.  That  is  the  chief  and 
necessary  protection  of  the  weak  against  the  power  of  the 
strong.  Observance  of  that  is  the  necessary  condition  to  the 
peace  and  order  of  the  civilized  world.  By  the  declaration  of 
that  principle  the  common  judgment  of  civilization  awards 
to  the  smallest  and  weakest  state  the  liberty  to  control  its 
own  affairs  without  interference  from  any  other  Power, 
however  great. 

The  Monroe  Doctrine  does  not  infringe  upon  that  right. 
It  asserts  the  right.  Th^^claration  of  Monroe  was  that  the 
rights  and  interests  of  the  UnitecT  States  were  invqLved  iii 
maiiitainmg  a  condition,  ahH'lEe  condition  to  be  maintained 

wg«  thp  iTTflpppnr]fpp^  nf  all  t>|fi   Arnpri^^,p   omintnVs.      It  is 

"  the  free  and  independent  condition  which  they  have  as- 
sumed and  maintained  "  which  is  declared  to  render  them 
not  subject  to  future  colonization.  It  is  **  the  governments 
who  have  declared  their  independence  and  maintained  it  and 
whose  independence  we  have  on  great  consideration  and  on 


114  INTERNATIONAL  SUBJECTS 

just  principles  acknowledged  "  that  are  not  to  be  interfered 

with.    When  Mr.  Canning's  proposals  for  a  joint  declaration 

were  under  consideration  by  the  Cabinet  in  the  month  before 

the  famous  message  was  sent,  John  Quincy  Adams,  who 

played  the  major  part  in  forming  the  policy,  declared  the 

basis  of  it  in  these  words: 

Considering  the  South  Americans  as  independent  nations,  they  them- 
selves and  no  other  nation  had  the  right  to  dispose  of  their  condition.  We 
have  no  right  to  dispose  of  them  either  alone  or  in  conjimction  with  other 
nations.  Neither  have  any  other  nations  the  right  of  disposing  of  them 
without  their  consent. 

In  the  most  critical  and  momentous  application  of  the 

doctrine  Mr.  Seward  wrote  to  the  French  Minister: 

France  need  not  for  a  moment  delay  her  promised  withdrawal  of  mili- 
tary forces  from  Mexico  and  her  putting  the  principle  of  non-intervention 
into  fidl  and  complete  practice  in  regard  to  Mexico  through  any  appre- 
hension that  the  United  States  will  prove  unfaithful  to  the  principles  and 
policy  in  that  respect  which  on  their  behalf  it  has  been  my  duty  to  main- 
tain in  this  now  very  lengthened  correspondence.  The  practice  of  this 
government  from  its  begiiming  is  a  guarantee  to  all  nations  of  the  respect 
of  the  American  people  for  the  free  sovereignty  of  the  people  in  every 
other  state.  We  received  the  instruction  from  Washington.  We  applied 
it  sternly  in  our  early  intercourse  even  with  France.  The  same  principle 
and  practice  have  been  uniformly  inculcated  by  all  our  statesmen,  inter- 
preted by  all  oiu-  jurists,  maintained  by  all  our  Congresses,  and  acquiesced 
in  without  practical  dissent  on  all  occasions  by  the  American  people.  It 
is  in  reality  the  chief  element  of  foreign  intercourse  in  our  history. 

In  his  message  to  Congress  of  December  3, 1906,  President 

Roosevelt  said: 

In  many  parts  of  South  America  there  has  been  much  misimderstanding 
of  the  attitude  and  purposes  of  the  United  States  toward  the  other  Ameri- 
can republics.  An  idea  had  become  prevalent  that  our  assertion  of  the 
Monroe  Doctrine  implied  or  carried  with  it  an  assumption  of  superiority 
and  of  a  right  to  exercise  some  kind  of  protectorate  over  the  countries  to 
whose  territory  that  doctrine  applies.  Nothing  could  be  farther  from  the 
truth. 

He  quoted   the  words  of   the   Secretary  of   State  then  in 
oflSce  to  the  recent  Pan-American  Conference  at  Rio  Janeiro: 


THE  REAL  MONROE  DOCTRmE  115 

We  deem  the  independence  and  equal  rights  of  the  smallest  and  weak- 
est member  of  the  family  of  nations  entitled  to  as  much  respect  as  those  of 
the  greatest  empire  and  we  deem  the  observance  of  that  respect  the  chief 
guaranty  of  the  weak  against  the  oppression  of  the  strong.  We  neither 
claim  nor  desire  any  rights  or  privileges  or  powers  that  we  do  not  freely 
concede  to  every, American  republic. 

And  the  President  then  proceeded  to  say  of  these  statements: 

They  have  my  hearty  approval,  as  I  am  sure  they  will  have  yours,  and 
I  cannot  be  wrong  in  the  conviction  that  they  correctly  represent  the  senti- 
ments of  the  whole  American  people.  I  cannot  better  characterize  the 
true  attitude  of  the  United  States  in  its  assertion  of  the  Monroe  Doctrine 
than  in  the  words  of  the  distinguished  former  Minister  of  Foreign  Affairs 
of  Argentina,  Doctor  Drago  ..."  the  traditional  poUcy  of  the  United 
States  without  accentuating  sujieriority  or  seeking  preponderance  con- 
demned the  oppression  of  the  nations  of  this  part  of  the  world  and  the 
control  of  their  destinies  by  the  great  Powers  of  Eurojie." 

Curiously  enough,  many  incidents  and  consequences  of 
that  independent  condition  itself  which  the  United  States 
asserted  in  the  Monroe  Doctrine  have  been  regarded  in  some 
quarters  as  infringements  upon  independence  resulting  from 
the  Monroe  Doctrine.  Just  as  the  personal  rights  of  each 
individual  free  citizen  in  the  state  are  limited  by  the  equal 
rights  of  every  other  free  individual  in  the  same  state,  so  the 
sovereign  rights  of  each  independent  state  are  limited  by  the 
equal  sovereign  rights  of  every  other  independent  state. 
These  Hmitations  are  not  impairments  of  independent  sov- 
ereignty. They  are  the  necessary  conditions  to  the  existence 
of  independent  sovereignty.  If  the  Monroe  Doctrine  had 
never  been  declared  or  thought  of,  the  sovereign  rights  of 
each  American  republic  would  have  been  limited  by  the  equal 
sovereign  rights  of  every  other  American  repubhc,  including 
the  United  States.  The  United  States  would  have  had  a 
right  to  demand  from  every  other  American  state  observance 
of  treaty  obhgations  and  of  the  rules  of  international  law. 
It  would  have  had  the  right  to  insist  upon  due  protection  for 
the  lives  and  property  of  its  citizens  within  the  territory  of 


116  INTERNATIONAL  SUBJECTS 

every  other  American  state,  and  upon  the  treatment  of  its 
citizens  in  that  territory  according  to  the  rules  of  interna- 
tional law.  The  United  States  would  have  had  the  right  as 
against  every  other  American  state  to  object  to  acts  which 
the  United  States  might  deem  injurious  to  its  peace  and 
safety  just  as  it  had  the  right  to  object  to  such  acts  as  against 
any  European  Power  and  just  as  all  European  and  American 
Powers  have  the  right  to  object  to  such  acts  as  against  each 
other.  All  these  rights  which  the  United  States  would  have 
had  as  against  other  American  states  it  has  now.  They  are 
not  in  the  slightest  degree  affected  by  the  Monroe  Doctrine. 
They  exist  now  just  as  they  would  have  existed  if  there  had 
been  no  Monroe  Doctrine.  They  are  neither  greater  nor  less 
because  of  that  doctrine.  They  are  not  rights  of  superiority, 
they  are  rights  of  equality.  They  are  the  rights  which  all 
equal  independent  states  have  as  against  each  other.  And 
they  cover  the  whole  range  of  peace  and  war. 

It  happens,  however,  that  the  United  States  is  very  much 
bigger  and  more  powerful  than  most  of  the  other  American 
repubhcs.  And  when  a  very  great  and  powerful  state  makes 
demands  upon  a  very  small  and  weak  state  it  is  difficult  to 
avoid  a  feeling  that  there  is  an  assumption  of  superior  au- 
thority involved  in  the  assertion  of  superior  power,  even 
though  the  demand  be  based  solely  upon  the  right  of  equal 
against  equal.  An  examination  of  the  various  controversies 
which  the  United  States  has  had  with  other  American  Powers 
will  disclose  the  fact  that  in  every  case  the  rights  asserted 
were  rights  not  of  superiority  but  of  equality.  Of  course  it 
cannot  be  claimed  that  great  and  powerful  states  shall  forego 
their  just  rights  against  smaller  and  less  powerful  states. 
The  responsibilities  of  sovereignty  attach  to  the  weak  as  well 
as  to  the  strong,  and  a  claim  to  exemption  from  those  respon- 
sibilities would  imply  not  equality  but  inferiority.  The  most 
that  can  be  said  concerning  a  question  between  a  powerful 


THE  REAL  MONROE  DOCTRINE  117 

state  and  a  weak  one  is  that  the  great  state  ought  to  be  espe- 
cially considerate  and  gentle  in  the  assertion  and  mainten- 
ance of  its  position;  ought  always  to  base  its  acts  not  upon  a 
superiority  of  force,  but  upon  reason  and  law;  and  ought  to 
assert  no  rights  against  a  small  state  because  of  its  weakness 
which  it  would  not  assert  against  a  great  state  notwithstand- 
ing its  power.  But  in  all  this  the  Monroe  Doctrine  is  not 
concerned  at  all. 

The  scope  of  the  doctrine  is  strictly  limited.  It  concerns 
itself  only  with  the  occupation  of  territory  in  the  New  World 
to  the  subversion  or  exclusion  of  a  pre-existing  American 
government.  It  has  not  otherwise  any  relation  to  the  affairs 
of  either  American  or  European  states.  In  good  conduct  or 
bad,  observance  of  rights  or  violations  of  them,  agreement 
or  controversy,  injury  or  reprisal,  coercion  or  war,  the  United 
States  finds  no  warrant  in  the  Monroe  Doctrine  for  inter- 
ference.   So  Secretary  Cass  wrote,  in  1858: 

With  respect  to  the  causes  of  war  between  Spain  and  Mexico,  the 
United  States  have  no  concern,  and  do  not  undertake  to  judge  them.  Nor 
do  they  claim  to  interpose  in  any  hostilities  which  may  take  place.  Their 
policy  of  observation  and  interference  is  limited  to  the  p)ermanent  subju- 
gation of  any  portion  of  the  territory  of  Mexico,  or  of  any  other  American 
state,  to  any  European  Power  whatever. 

And  Mr.  Seward  wrote,  in  1861,  concerning  the  alhed  opera- 
tion against  Mexico: 

As  the  undersigned  has  heretofore  had  the  honor  to  inform  each  of  the 
plenipotentiaries  now  addressed,  the  President  does  not  feel  at  liberty  to 
question,  and  does  not  question,  that  the  sovereigns  represented  have 
undoubted  right  to  decide  for  themselves  the  fact  whether  they  have 
sustained  grievances,  and  to  resort  to  war  against  Mexico  for  the  redress 
thereof,  and  have  a  right  abo  to  levy  the  war  severally  or  jointly. 

So  when  Germany,  Great  Britain  and  Italy  united  to  compel 
by  naval  force  a  response  to  their  demands  on  the  part  of 
Venezuela  and  the  German  Government  advised  the  United 
States  that  it  proposed  to  take  coercive  measures  to  enforce 


118  INTERNATIONAL  SUBJECTS 

its  claims  for  damages  and  for  money  against  Venezuela, 
adding,  "  We  declare  especially  that  under  no  circumstances 
do  we  consider  in  our  proceedings  the  acquisition  or  perma- 
nent occupation  of  Venezuelan  territory,'*  Mr.  Hay  replied 
that  the  Government  of  the  United  States,  although  it 

regretted  that  European  Powers  should  use  force  against  Central  and 
South  American  countries,  could  not  object  to  their  taking  steps  to  obtain 
redress  for  injuries  suffered  by  their  subjects,  provided  that  no  acquisition 
of  territory  was  contemplated. 

Quite  independent  of  the  Monroe  Doctrine,  however,  there 
is  a  rule  of  conduct  among  nations  imder  which  each  nation 
is  deemed  bound  to  render  the  good  offices  of  friendship 
to  the  others  when  they  are  in  trouble.  The  rule  has  been 
crystallized  in  the  provisions  of  The  Hague  Convention 
for  the  Pacific  Settlement  of  International  Disputes.  Under 
the  head  of  "  The  Maintenance  of  General  Peace  "  in  that 
convention  substantially  all  the  Powers  of  the  world  have 
agreed: 

With  a  view  to  obviating  as  far  as  possible  recoxirse  to  force  in  the  rela- 
tions between  states,  the  contracting  Powers  agree  to  use  their  best  efforts 
to  ensure  the  pacific  settlement  of  international  differences. 

In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms,  the 
contracting  Powers  agree  to  have  recourse,  as  far  as  circumstances  allow, 
to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Independently  of  this  recourse,  the  contracting  Powers  deem  it  expedi- 
ent and  desirable  that  one  or  more  Powers,  strangers  to  the  dispute, 
should,  on  their  own  initiative  and  as  far  as  circumstances  may  allow,  offer 
their  good  offices  or  mediation  to  the  states  at  variance.  .  .  .  The  exercise 
of  this  right  can  never  be  regarded  by  either  of  the  parties  in  dispute  as  an 
unfriendly  act. 

The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims  and 
appeasing  the  feelings  of  resentment  which  may  have  arisen  between  the 
states  at  variance. 

The  United  States  has  frequently  performed  this  duty  in 
controversies  between  American  republics  among  themselves 
and  between  American  repubhcs  and  European  states.  So 
in  the  controversy  last  referred  to,  the  United  States  used 


THE  REAL  MONROE  DOCTRINE  119 

its  good  offices  to  bring  about  a  series  of  arbitrations  which 
superseded  the  resort  to  force  determined  upon  by  the  allied 
Powers  against  Venezuela.  It  did  this  upon  the  request  of 
Venezuela.  It  did  it  in  the  performance  of  no  duty  and  the 
exercise  of  no  right  whatever  except  the  duty  and  the  right 
of  friendship  between  equal  sovereign  states.  The  Monroe 
Doctrine  has  nothing  whatever  to  do  with  acts  of  this  descrip- 
tion; yet  many  times  censorious  critics,  unfamiliar  with  the 
facts  and  uninstructed  in  the  customs  and  rules  of  action  of 
the  international  world,  have  accused  the  United  States  in 
such  cases  of  playing  the  role  of  school  master,  of  assuming 
the  superiority  of  guardianship,  of  aiming  at  a  protectorate. 

As  the  Monroe  Doctrine  neither  asserts  nor  involves  any 
right  of  control  by  the  United  States  over  any  American 
nation,  it  imposes  upon  the  United  States  no  duty  towards 
European  Powers  to  exercise  such  a  control.  It  does  not  call 
upon  the  United  States  to  collect  debts  or  coerce  conduct  or 
redress  wrongs  or  revenge  injuries.  If  matters  ever  come  to  a 
point  where  in  any  American  country  the  United  States  inter- 
venes by  force  to  prevent  or  end  an  occupation  of  territory 
to  the  subversion  or  exclusion  of  an  American  government, 
doubtless  new  rights  and  obligations  will  arise  as  a  result  of 
the  acts  done  in  the  course  of  the  intervention.  Unless  such 
a  situation  shall  have  arisen  there  can  be  no  duty  on  the  part 
of  the  United  States  beyond  the  exercise  of  good  offices  as 
between  equal  and  independent  nations. 

There  are  indeed  special  reasons  why  the  United  States 
should  perform  that  duty  of  equal  friendship  to  the  full 
limit  of  international  custom  and  international  ethics  as 
declared  in  The  Hague  Convention,  whenever  occasion  arises 
in  controversy  between  American  and  European  Powers. 
There  is  a  motive  for  that  in  the  special  sympathy  and  friend- 
ship for  the  gradually  developing  republics  of  the  south 
which  the  American  people  have  always  felt  since  the  days 


120  INTERNATIONAL  SUBJECTS 

of  Monroe  and  John  Quincy  Adams  and  Richard  Rush  and 
Henry  Clay.  There  is  a  motive  in  the  strong  desire  of  our 
government  that  no  controversy  between  a  European  and  an 
American  state  shall  ever  come  to  the  point  where  the  United 
States  may  be  obliged  to  assert  by  force  the  rule  of  national 
safety  declared  by  Monroe.  And  there  is  a  motive  in  the 
proper  desire  of  the  United  States  that  no  friendly  nation  of 
Eiu'ope  or  America  shall  be  injured  or  hindered  in  the  prose- 
cution of  its  rights  in  any  way  or  to  any  extent  that  can  pos- 
sibly be  avoided  because  that  nation  respects  the  rule  of 
safety  which  Mr.  Monroe  declared  and  we  maintain.  None 
of  these  reasons  for  the  exercise  of  the  good  oflSces  of  equality 
justijfies  nor  do  all  of  them  together  justify  the  United  States 
in  infringing  upon  the  independence  or  ignoring  the  equal 
rights  of  the  smallest  American  state. 

Nor  has  the  United  States  ever  in  any  instance  during 
the  period  of  almost  a  century  which  has  elapsed,  made  the 
Monroe  Doctrine  or  the  motives  which  lead  us  to  support  it, 
the  groimd  or  excuse  for  overstepping  the  limits  which  the 
rights  of  equal  sovereignty  set  between  equal  sovereign  states. 

Since  the  Monroe  Doctrine  is  a  declaration  based  uj)on  this 
nation's  right  of  self-protection,  it  cannot  be  transmuted 
into  a  joint  or  common  declaration  by  American  states  or  any 
number  of  them.  If  Chile  or  Argentina  or  Brazil  were  to 
contribute  the  weight  of  its  influence  toward  a  similar  end, 
the  right  upon  which  that  nation  would  rest  its  declaration 
would  be  its  own  safety,  not  the  safety  of  the  United  States. 
Chile  would  declare  what  was  necessary  for  the  safety  of 
Chile.  Argentina  woidd  declare  what  was  necessary  for  the 
safety  of  Argentina.  Brazil,  what  was  necessary  for  the 
safety  of  Brazil.  Each  nation  would  act  for  itself  and  in  its 
own  right  and  it  would  be  impossible  to  go  beyond  that 
except  by  more  or  less  offensive  and  defensive  alliances.  Of 
course  such  aUiances  are  not  to  be  considered. 


THE  REAL  MONROE  DOCTRINE  121 

It  is  plain  that  the  building  of  the  Panama  Canal  greatly 
accentuates  the  practical  necessity  of  the  Monroe  Doctrine 
as  it  applies  to  all  the  territory  surrounding  the  Caribbean  or 
near  the  Bay  of  Panama.  The  plainest  lessons  of  history  and 
the  universal  judgment  of  all  responsible  students  of  the  sub- 
ject concur  in  teaching  that  the  potential  command  of  the 
route  to  and  from  the  Canal  must  rest  with  the  United  States 
and  that  the  vital  interests  of  the  nation  forbid  that  such 
command  shall  pass  into  other  hands.  Certainly  no  nation 
which  has  acquiesced  in  the  British  occupation  of  Egypt  will 
dispute  this  proposition.  Undoubtedly  as  one  passes  to  the 
south  and  the  distance  from  the  Caribbean  increases,  the 
necessity  of  maintaining  the  rule  of  Monroe  becomes  less 
inmiediate  and  apparent.  But  who  is  competent  to  draw  the 
line  ?  Who  will  say,  "  To  this  point  the  rule  of  Monroe 
should  apply;  beyond  this  point,  it  should  not "  ?  Who  will 
say  that  a  new  national  force  created  beyond  any  line  that  he 
can  draw  will  stay  beyond  it  and  will  not  in  the  long  course 
of  time  extend  itself  indefinitely  ? 

The  danger  to  be  apprehended  from  the  inmiediate  proxim- 
ity of  hostile  forces  was  not  the  sole  consideration  leading  to 
the  declaration.  The  need  to  separate  the  influences  deter- 
mining the  development  and  relation  of  states  in  the  New 
World  from  the  influences  operating  in  Europe  played  an 
even  greater  part.  The  familiar  paragraphs  of  Washington's 
Farewell  Address  upon  this  subject  were  not  rhetoric.  They 
were  intensely  practical  rules  of  conduct  for  the  future 
guidance  of  the  country. 

Europe  has  a  set  of  primary  interests,  which  to  us  have  none,  or  a  very 
remote,  relation.  Hence,  she  must  be  engaged  in  frequent  controversies, 
the  causes  of  which  are  essentially  foreign  to  our  concerns.  Hence,  there- 
fore, it  must  be  unwise  in  us  to  implicate  ourselves,  by  artificial  ties,  in 
the  ordinary  vicissitudes  of  her  politics,  or  the  ordinary  combinations 
and  collisions  of  her  friendships  or  enmities.  Our  detached  and  distant 
situation  invites  and  enables  us  to  pursue  a  different  course. 


122  INTERNATIONAL  SUBJECTS 

It  was  the  same  instinct  which  led  Jefferson,  in  the  letter 

to  Monroe  already  quoted,  to  say : 

Our  first  and  fundamental  maxim  shoiild  be,  never  to  entangle  our- 
selves in  the  broils  of  Europe;  our  second,  never  to  suffer  Eiu-ope  to 
intermeddle  with  eis-atlantic  affairs. 

The  concurrence  of  Washington  and  Hamilton  and  Jefifer- 
son  in  the  declaration  of  this  principle  of  action  entitles  it  to 
great  respect.  They  recalled  the  long  period  during  which 
every  war  waged  in  Europe  between  European  Powers  and 
arising  from  European  causes  of  quarrel  was  waged  also  in 
the  New  World.  English  and  French  and  Spanish  and 
Dutch  killed  and  harried  each  other  in  America,  not  because 
of  quarrels  between  the  settlers  in  America  but  because  of 
quarrels  between  the  European  Powers  having  dominion 
over  them.  Separation  of  influences  as  absolute  and  com- 
plete as  possible  was  the  remedy  which  the  wisest  of  Ameri- 
cans agreed  upon.  It  was  one  of  the  primary  purposes  of 
Monroe's  declaration  to  insist  upon  this  separation,  and  to 
accomplish  it  he  drew  the  line  at  the  water's  edge.  The  prob- 
lem of  national  protection  in  the  distant  future  is  one  not  to 
be  solved  by  the  first  impressions  of  the  casual  observer,  but 
only  by  profound  study  of  the  forces  which,  in  the  long  life  of 
nations,  work  out  results.  In  this  case  the  results  of  such  a 
study  by  the  best  men  of  the  formative  period  of  the  United 
States  are  supported  by  the  instincts  of  the  American  de- 
mocracy holding  steadily  in  one  direction  for  almost  a  cen- 
tury. The  problem  has  not  changed  essentially.  If  the 
declaration  of  Monroe  was  right  when  the  message  was  sent, 
it  is  right  now.  South  America  is  no  more  distant  today 
than  it  was  then.  The  tremendous  armaments  and  inter- 
national jealousies  of  Europe  afford  little  assurance  to  those 
who  think  we  may  now  abandon  the  separatist  policy  of 
Washington.  That  South  American  states  have  become  too 
strong  for  colonization  or  occupation  is  cause  for  satisfac- 


THE  REAL  MONROE  DOCTRINE  123 

tion.  That  Europe  has  no  purpose  or  wish  to  colonize  Amer- 
ican territory  is  most  gratifying.  These  facts  may  make  it 
improbable  that  it  will  be  necessary  to  apply  the  Monroe 
Doctrine  in  the  southern  parts  of  South  America;  but  they 
furnish  no  reason  whatever  for  retracting  or  denying  or 
abandoning  a  declaration  of  public  policy,  just  and  reason- 
able when  it  was  made,  and  which,  if  occasion  for  its  ap- 
plication shall  arise  in  the  future,  will  still  be  just  and 
reasonable. 

A  false  conception  of  what  the  Monroe  Doctrine  is,  of 
what  it  demands  and  what  it  justifies,  of  its  scope  and  of  its 
limits,  has  invaded  the  public  press  and  affected  public 
opinion  within  the  past  few  years.  Grandiose  schemes  of 
national  expansion  invoke  the  Monroe  Doctrine.  Interested 
motives  to  compel  Central  or  South  American  countries  to 
do  or  refrain  from  doing  something  by  which  individual 
Americans  may  profit  invoke  the  Monroe  Doctrine.  Clamors 
for  national  glory  from  minds  too  shallow  to  grasp  at  the 
same  time  a  sense  of  national  duty  invoke  the  Monroe  Doc- 
trine. The  intolerance  which  demands  that  control  over  the 
conduct  and  the  opinions  of  other  peoples  which  is  the  essence 
of  tyranny  invokes  the  Monroe  Doctrine.  Thoughtless 
people  who'  see  no  difference  between  lawful  right  and  physi- 
cal power  assume  that  the  Monroe  Doctrine  is  a  warrant  for 
interference  in  the  internal  affairs  of  all  weaker  nations  in  the 
New  World.  Against  this  supposititious  doctrine,  many 
protests  both  in  the  United  States  and  in  South  America 
have  been  made,  and  justly  made.  To  the  real  Monroe 
Doctrine  these  protests  have  no  appHcation. 


CONFERENCE  OF  TEACHERS  OF 
INTERNATIONAL  LAW 

A  conference  of  teachers  of  international  law  was  held  at  the  city  of  Washington, 
April  23-25, 1914,  under  the  auspices  of  the  American  Society  of  International  Law, 
"  in  order  to  consider  what  measures,  if  any,  could  properly  be  taken  to  arouse  a 
greater  interest  in  international  law  where  taught  in  American  institutions  of  learn- 
ing; to  secure  its  introduction  in  American  institutions  of  learning  where  it  is  not 
taught;  to  call  attention  to  its  importance  to  lawyers  in  the  practice  of  their  pro- 
fession; and  to  suggest  the  advisability  of  a  knowledge  of  its  principles  for  admis- 
sion to  the  bar;  and  to  show,  finally,  the  necessity  of  an  understanding  of  the  subject 
by  the  public  at  large,  which  in  a  democracy  such  as  oiu-s  determines  in  the  ultimate 
resort  the  foreign  policy  of  the  United  States." 

The  Conference  unanimously  adopted  a  series  of  resolutions  and  these  resolu- 
tions, in  so  far  as  they  are  of  a  general  nature,  were  approved  on  January  8, 1916,  by 
the  Second  Pan-American  Scientific  Congress,  and  form  articles  23-32  of  its  Final 
Act. 

For  the  proceedings  and  the  text  of  resolutions  of  the  Teachers'  Conference,  see 
Proceedings  of  the  American  Society  of  International  Law  (1914),  pp.  250-324. 

For  the  recommendations  of  the  Second  Pan-American  Scientific  Congress,  see 
its  Final  Act  and  interpretative  commentary  thereon  by  James  Brown  Scott  (1916), 
pp.  92-110. 

As  president  of  the  Society,  Mr.  Root  called  the  Conference  together,  and  made 
the  following  opening  remarks: 

IT  gives  me  very  great  pleasure  to  welcome  you  to  partici- 
pation in  this,  the  Conference  of  Teachers  of  International 
Law  and  Related  Subjects,  held  in  connection  with  the 
Eighth  Annual  Meeting  of  the  American  Society  of  Interna- 
tional Law,  and  to  express  the  grateful  appreciation  of  the 
oflBcers  and  members  of  the  Society  to  the  instructors  in 
international  law  who  have  left  their  customary  duties,  to 
come  here  for  the  purpose  of  taking  part  in  this  conference. 
The  invitation  which  led  to  this  meeting  had  its  origin  in  a 
resolution  which  was  oflFered  by  that  honored  and  admired 
leader  in  American  education,  Mr.  Andrew  D.  White,  at  a 
meeting  of  the  Trustees  of  the  Carnegie  Endowment  for  In- 
ternational Peace.    One  of  the  divisions  of  work  established 

l^s 


126  INTERNATIONAL  SUBJECTS 

under  that  trust  is  the  Division  of  International  Law,  of 
which  Dr.  James  Brown  Scott  is  the  head;  and  Mr.  White, 
responding  to  the  double  impulse  of  his  old  enthusiasm  as  a 
teacher  and  organizer  of  education  and  as  a  diplomatist,  as 
the  representative  of  his  country  at  the  court  of  Germany, 
and  as  the  first  delegate  of  his  country  to  the  First  Hague 
Conference,  offered  this  resolution: 

Resolved:  That  the  Executive  Committee  be  directed  to  propose  and 
carry  out,  subject  to  the  approval  of  this  Board,  a  plan  for  the  propagation, 
development,  maintenance  and  increase  of  sound,  progressive  and  fruitfiJ 
ideas  on  the  subject  of  arbitration  and  international  law  and  history  as 
connected  with  arbitration,  esp)ecially  through  addresses  or  courses  of 
lectures  delivered  before  the  leading  xmiversities,  colleges  and  law  schools 
of  the  United  States,  and  to  report  on  the  same  at  the  next  regiilar  meeting 
of  the  Board,  or,  should  the  Committee  think  best,  at  a  special  meeting  to 
be  called  for  that  purpose. 

In  taking  the  first  steps  in  compliance  with  this  resolution, 
the  Executive  Committee  found  it  desirable  to  ascertain,  as  a 
basis  of  action,  what  was  already  being  done  in  the  United 
States  along  the  lines  indicated  by  the  resolution;  and,  ac- 
cordingly, an  inquiry  was  set  on  foot  and  prosecuted,  in  which 
was  developed  the  state  of  education  upon  this  subject  in  all 
the  leading  colleges  and  universities  and  law  schools  of  the 
country,  and  a  very  full  report  was  made  upon  that  subject. 

The  consideration  of  the  facts  developed  by  that  report  led 
to  the  conclusion  that  the  program,  the  method  of  procedure, 
the  scope  of  enterprise  and  activity  in  the  spirit  of  Mr. 
White's  resolution,  were  something  that  no  individual  and  no 
committee  organized  for  any  other  purpose,  as  was  the  Exec- 
utive Committee  of  the  Peace  Endowment,  could  properiy 
handle,  could  adequately  deal  with;  and,  accordingly,  the 
suggestion  was  made  that  the  American  Society  of  Interna- 
tional Law,  which  deals  specifically  with  the  subject-matter 
of  the  resolution,  should  take  it  up,  and  that  the  men  who 
know  best  what  is  needed  and  how  that  shall  be  done  and  can 


CONFERENCE  OF  TEACHERS       127 

be  done,  should  come  together  and  confer  upon  the  subject. 
So  you  see  that  the  initial  impulse  which  brings  you  here  is  a 
source  which  must  be  respected  by  every  American  educator, 
and  has  a  purpose  which  is  certified  to  by  the  highest  ability 
and  the  broadest  experience. 

I  will  detain  you  from  the  practical  work  which  lies  before 
you  in  organizing  the  conference,  by  only  a  single  suggestion. 
The  putting  of  instruction  in  international  law  in  American 
educational  institutions  on  a  broader  basis,  giving  it  a  wider 
scope  and  greater  efficiency,  is  not  a  mere  matter  of  book 
learning.  It  is  not  a  mere  matter  of  science.  It  is  a  matter  of 
patriotic  duty. 

More  and  more,  as  the  years  follow  one  another  with  the 
swiftness  of  our  modem  life,  democracy  is  coming  to  its  own. 
More  and  more  the  people,  the  men  on  the  farms  and  in  the 
shops,  the  men  with  the  pick  and  shovel  in  their  hands,  are 
assuming  the  direction  of  the  operations  of  government,  both 
internal  and  external.  More  and  more  they  are  directly 
responsible  for  the  operations  of  government.  Presidents  and 
Congresses  more  and  more  look  for  immediate  response  from 
constituencies  upon  the  most  difficult  and  intricate  questions 
in  the  foreign  relations  of  the  country,  questions  the  right 
solution  of  which  requires  broad  knowledge,  which  cannot  be 
solved  by  the  impressions  of  the  moment,  which  cannot 
be  solved  by  emotional  response  to  oratory. 

I  think  no  one  can  study  the  movement  of  the  times  with- 
out realizing  that  the  democracy  of  the  world  —  for  it  is  not 
alone  in  this  country  —  is  realizing  its  rights  in  advance  of  its 
realization  of  its  duties.  And  that  way  lies  disaster.  That 
way  lies  hideous  wrong.  That  way  lies  the  exercise  of  the 
mighty  powers  of  modern  democracies  to  destroy  themselves, 
to  destroy  the  vitality  of  the  principles  upon  which  they  de- 
pend. And  there  is  no  duty  more  incumbent  today  upon  the 
men  whose  good  fortune  has  made  it  possible  for  them  to 


128  INTERNATIONAL  SUBJECTS 

acquire  a  broader  knowledge  upon  the  subjects  with  which 
democracy  deals,  than  to  become  themselves  leaders  of 
opinion  and  teachers  of  their  people.  Unless  the  popular  will 
responds  to  the  instructed  and  competent  leadership  of 
opinion  upon  the  vital  questions  of  our  foreign  relations,  the 
worst  impulses  of  democracy  will  control.  At  the  bottom  of 
wise  and  just  action  lies  an  understanding  of  national  rights 
and  national  duties.  Half  the  wars  of  history  have  come 
because  of  mistaken  opinions  as  to  national  rights  and 
national  obligations,  have  come  from  the  unthinking  assump- 
tion that  all  the  right  is  on  the  side  of  one's  own  country,  all 
the  duty  on  the  side  of  some  other  country.  Now  I  say  the 
thing  most  necessary  for  the  good  of  our  country  in  the 
foreign  relations  which  are  growing  every  year  more  and  more 
intricate  and  critical,  is  that  there  shall  be  intelligent  leader- 
ship of  opinion  as  to  national  rights  and  national  obligations; 
and  nobody  can  bring  that  about  as  the  educators  of  America 
can  bring  it  about.  It  is  in  the  hope  that  you  will  be  able  to 
organize,  to  give  direction  and  wise  guidance  to  a  systematic 
movement  to  accomplish  this  good  service  for  our  country, 
that  I  take  the  deepest  interest  in  this  conference,  and  bid 
you  God-speed  in  your  labors. 


THE  HAGUE  PEACE  CONFERENCES 

ADDRESS  IN  OPENING  THE  NATIONAL  ARBITRATION  AND 

PEACE  CONGRESS,  IN  THE  CITY  OF  NEW  YORK, 

APRIL  15,  1907 

In  submitting  the  Hague  Conventions  of  1907  to  the  Senate,  Mr.  Root, 
as  Secretary  of  State,  said : 

Let  me  go  beyond  the  limits  of  the  customary  formal  letter  of 
transmittal  and  say  that  I  think  the  work  of  ihe  Second  Hague 
Conference,  which  is  mainly  embodied  in  these  Conventions,  presents 
the  greatest  advance  ever  made  at  any  single  time  toward  the  reason- 
able and  peaceful  regulation  of  international  conduct,  unless  it  be 
the  advance  made  at  The  Hague  Conference  of  1899. 

The  most  valuable  result  of  the  Conference  of  1899  was  that  it 
made  the  work  of  the  Conference  of  1907  possible.   The  achievements 
of  the  Conferences  justify  the  beUef  that  the  world  has  entered  upon 
an  orderly  process  through  which,  step  by  step,  in  successive  Con- 
ferences, each  taking  the  work  of  its  predecessor  as  its  point  of 
departure,  there  may  be  continual  progress  toward  making  the 
practice  of  civilized  nations  conform  to  their  peaceful  professions. 
At  a  later  date,  Mr.  Root  furnished  a  prefatory  note  to  Scott's  Texts  o/ 
the  Peace  Conferences  at  the  Hague,  from  which  the  following  paragraph 
is  quoted  as  further  illustrating  his  views  as  to  the  importance  of  the 
international  conference  and  the  process  by  which  it  accomplishes  its 
results: 

The  question  about  each  international  conference  is  not  merely 
what  it  has  accomplished,  but  also  what  it  has  begun,  and  what  it 
has  moved  forward.  Not  only  the  conventions  signed  and  ratified, 
but  the  steps  taken  toward  conclusions  which  may  not  reach  practical 
and  effective  form  for  many  years  to  come,  are  of  value.  Some  of 
the  resolutions  adopted  by  the  last  conference  do  not  seem  to  amount 
to  very  much  by  themselves,  but  each  one  marks  on  some  line  of 
progress  the  farthest  point  to  which  the  world  is  yet  willing  to  go. 
They  are  like  cable  ends  buoyed  in  mid-ocean,  to  be  picked  up  here- 
after by  some  other  steamer,  spliced,  and  continued  to  shore.  The 
greater  the  reform  proposed,  the  longer  must  be  the  process  required 
to  bring  many  nations  differing  widely  in  their  laws,  customs,  tradi- 
tions, interests,  prejudices,  into  agreement.  Each  necessary  step  in 
the  process  is  as  useful  as  the  final  act  which  crowns  the  work  and  is 
received  with  public  celebration. 

129 


130  INTERNATIONAL  SUBJECTS 

>  In  order  fully  to  appreciate  Mr.  Root's  deep  interest  in  The  Hague  Con- 
ferences and  the  importance  he  attached  to  them  as  an  agency  in  the  devel- 
opment of  international  law  and  in  reaching  agreements  upon  international 
conduct,  the  reader  is  referred  to  Mr.  Root's  instructions,  as  Secretary 
of  State,  to  the  American  delegates  to  the  Second  Hague  Peace  Conference. 
These  instructions  will  be  found  in  the  collection  of  state  papers  in  this 


IN  every  country  which  has  reached  a  high  stage  of  civi- 
lization may  be  seen  the  working  of  two  distinct  and  ap- 
parently inconsistent  motives  or  principles  of  national 
conduct.  On  the  one  hand,  there  is  the  narrowly  and  imme- 
diately utilitarian  motive,  and  there  is  the  competitive 
attitude  fashioned  upon  the  habits  of  self-preservation  and 
self-assertion  enjoined  by  the  necessities  of  the  struggle  for 
existence.  With  this  motive  each  country  pursues  specific 
national  advantages  meeting  in  a  hard,  dry,  business-like 
way,  without  sympathy  or  sentiment,  the  facts  of  a  world  in 
which  there  is  much  selfishness  and  greed,  in  which  every 
nation  is  primarily  looking  out  for  itself,  and  in  which  there 
is  ordinarily  some  aggressor  ready  to  take  advantage  of  the 
over-trusting  and  defenseless. 

On  the  other  hand,  there  is  the  ethical,  altruistic,  humane 
impulse  that  presses  forward  constantly  toward  ideals.  Its 
possessors,  loving  Hberty  and  justice  and  peace,  long  to 
make  all  men  free  and  safe  and  secure  in  their  rights;  their 
eyes  are  fixed  upon  the  ultimate  goal  toward  which  civihza- 
tion  tends;  they  are  striving  that  better  things  shall  replace 
the  cynicism  and  selfishness  and  cruelty  which  have  always 
so  widely  characterized  mankind;  they  assert  principles  and 
set  up  standards  of  action,  which  they  call  upon  mankind  to 
adopt,  and  mankind  too  often  gives  theoretical  assent  but 
denies  practical  conformity. 

In  every  man's  nature  there  are  manifestations  or  traces  of 
each  of  these  impulses;  and  in  every  nation  there  are  many 
citizens  in  whom  one,  and  many  in  whom  the  other,  impulse 


THE  HAGUE  PEACE  CONFERENCES  131 

strongly  predominates.  As  circumstances  bring  one  class  of 
motives  or  another  into  control  of  national  conduct  in  dif- 
ferent fields  of  national  action,  strangely  variant  and  incon- 
sistent national  action  results.  The  same  nation  may  be 
seen  hard  and  practical,  and  at  another  time,  or  perhaps  in 
another  field  at  the  same  time,  exhibiting  the  highest  degree 
of  unselfishness  and  humanity.  Under  the  predominance  of 
one  motive,  national  power  has  been  built  up;  administra- 
tion has  been  made  effective;  commerce  has  been  extended; 
material  wealth,  the  matrix  of  civilization,  has  been  created 
and  protected;  the  citizens  of  each  country  have  been  se- 
cured against  aggression  from  without;  and,  in  the  slow 
process  of  centuries,  the  code  of  practical  rules  convenient 
and  necessary  to  the  peaceable  intercourse  of  nations  has 
been  elaborated.  Under  the  predominance  of  the  other 
motive,  the  conception  of  individual  charity  and  humanity, 
which  found  its  highest  expression  in  the  Christian  revelation, 
has  slowly  impressed  itself  upon  the  conception  of  national 
duty  and  responsibility.  In  its  development  the  idea  of 
national  conscience  and  national  ethics  has  been  forced  into 
the  international  system,  which  formerly  acknowledged  the 
undisputed  sway  of  selfishness  and  cruelty,  long  condemned 
as  immoral  in  the  relations  between  individuals. 

It  is  natural  that  the  hard  and  practical  motive  shall  be 
uppermost  in  the  men  engaged  in  the  conduct  of  government; 
they  are  endowed  with  limited  and  definite  powers  and 
charged  with  specific  trusts  for  the  benefit  of  their  own 
people;  their  duties  are  to  protect  and  advance  the  interests 
of  their  own  country,  and  those  duties  relate,  in  the  main,  to 
the  material  interest  of  their  countrymen;  their  specific 
powers  are  given  to  them  for  that  specific  purpose;  they 
have  no  warrant  of  attorney  to  express  or  give  effect  to  the 
benevolent  or  humanitarian  impulses  of  their  constituents; 
under  constitutional  government,  as  a  rule,  such  expression 


132  INTERNATIONAL  SUBJECTS 

is  not  committed  by  law  to  public  officers,  but  is  reserved  to 
the  people.  In  the  discharge  of  their  international  duties 
governmental  officers  have  to  deal  with  a  world  of  selfish 
competition  and  ever-present  possibility  of  aggression  and 
injury,  which  compel  them  to  think  first  and  chiefly  of  the 
interest  of  their  own  country  as  a  lawyer  argues  the  case  of 
his  own  client.  They  are  constrained  by  the  rules  of  conduct 
between  nations  which  the  experience  of  centuries  has  shown 
to  be  necessary  to  the  peace  of  the  world.  Among  the  first  of 
these  is,  that  the  government  of  each  nation  shall  attend  to 
its  own  business  and  respect  the  sovereignty  and  refrain 
from  interfering  with  the  internal  affairs  of  every  other 
nation.  This  rule  is  the  chief  protection  of  the  liberty  of 
small  and  weak  nations  against  the  aggression  of  the  strong. 
To  break  it  down  whenever  the  officers  of  one  government 
disapprove  the  conduct  of  another  government  within  its 
own  jurisdiction,  would  be  to  break  down  the  barriers  which 
civilization  has  erected  for  the  protection  of  the  weak,  with 
results  as  fatal  as  if  the  executive  were  allowed  to  make 
orders  and  the  judge  to  issue  decrees  according  to  their  own 
kindly  impulses,  without  regard  to  the  limitations  of  law. 

It  is  natural  that  the  altruistic  and  humanitarian  view, 
broader  and  less  immediately  practical,  shall  be  taken  by 
students  and  thinkers,  by  teachers  and  philosophers,  by  men 
who,  not  burdened  by  the  necessity  of  putting  theories  into 
practice,  are  at  liberty  to  look  upon  the  world  as  it  ought  to 
be  and  to  urge  mankind  on  toward  acceptance  of  their  ideals. 
These  men  are  masters  of  their  own  power;  they  have  a  war- 
rant from  all  whom  their  eloquence,  their  persuasion,  their 
reasoning,  or  the  inherent  soundness  of  their  ideas  bring  into 
agreement  with  them,  to  press  their  views  upon  the  world 
and  insist  upon  conformity.  In  every  civilized  land  their 
numbers,  their  power,  and  their  following  have  increased, 
most  of  all  in  lands  where  freedom  is  most  perfect  and  justice 


THE  HAGUE  PEACE  CONFERENCES  133 

most  pure,  until  the  voices  of  the  few  visionaries,  long  ago 
crying  in  the  wilderness,  have  become  the  sound  of  a  multi- 
tude; and  a  public  opinion  of  the  world,  insisting  upon  right- 
eousness and  peace  among  nations  as  among  individuals,  is 
beginning  to  be  perceived  and  to  affect  the  national  purposes 
which  governments  represent. 

It  is  inevitable  that  the  men  who  are  directed  by  these  two 
widely  differing  impulses  should  sometimes  be  impatient  of 
each  other.  The  humanitarian  is  repelled  by  the  hardness  of 
the  practical  man,  who  seems  unsympathetic  in  his  failure  to 
act  upon  views  that  are  certainly  sound  in  the  abstract  and 
which  ought  to  be  accepted  by  all  the  world.  The  practical 
administrator  is  distressed  by  the  urgency  of  the  theorist, 
who,  ignorant  of  real  conditions,  urges  him  to  a  course  of 
action  which  he  knows  cannot  possibly  be  taken,  or,  if  it 
were  taken  under  existing  conditions,  would  result  only  in 
evil.  One  tends  to  think  lightly  of  the  other  as  an  impracti- 
cable theorist,  and  in  return  is  condemned  by  the  other  as 
unfeeling  and  cynical.  Both  judgments  are  probably  often, 
to  some  extent,  true,  but  both  are  generally,  and  to  a 
much  greater  extent,  wrong.  Each  class  plays  its  necessary 
part  in  the  great  work  of  advancing  civilization.  It  can- 
not be  doubted  that  the  supreme  results  for  humanity  are 
secured  by  the  combination,  the  union,  the  blending  of  the 
two  impulses,  to  the  end  that  national  selfishness  may  be  most 
broadly  intelligent  and  humanitarian  idealism  most  effec- 
tively practical. 

Your  invitation  to  take  part  in  the  opening  of  this  Peace 
Congress  has  come  to  me  as  an  occasion  to  declare  the  alliance 
and  sympathy  of  the  American  Government  with  that  other 
power  —  the  sentiment  of  humanity  —  which  in  all  lands, 
and  most  strongly  in  our  generation,  without  fleets  or  armies 
or  titles  or  dignities  or  compulsion  of  force,  is  leading  man- 
kind continually  to  a  nobler  life.    The  American  people  are 


134  INTERNATIONAL  SUBJECTS 

practical,  material,  strenuous  in  business,  eager  for  wealth, 
energetic  in  production  and  venturous  in  commerce,  insistent 
upon  their  rights,  proud  of  their  country,  jealous  of  its  power 
and  its  prestige;  but  there  is  a  strain  of  idealism  in  the 
American  nature  which  saves  our  nation  from  the  grossness 
of  sordid  materialism  and  makes  it  responsive  to  every  appeal 
in  behalf  of  liberty  and  righteousness,  of  peace  with  justice, 
and  of  human  brotherhood  the  world  over.  No  American 
Government  could  truly  represent  its  people  if  it  did  not 
sympathize  heartily  with  the  purposes  which  this  Congress 
meets  to  promote,  and  the  American  Government  of  today 
does  sympathize  heartily  with  those  purposes.  In  behalf 
of  the  Government  I  give  you  the  kindly  and  appreciative 
greeting  of  the  people  of  the  United  States  and  welcome  you 
as  spiritual  kindred  of  those  Americans  of  great  heart  and 
clear  intelligence  who  in  times  past,  striving  for  ordered  lib- 
erty and  the  peace  of  justice  in  this  land,  have  conferred 
inestimable  benefits  upon  all  mankind,  and  whose  memory 
and  example  are  our  most  precious  possessions. 

He  is  mistaken  who  depreciates  the  value  of  such  a  meet- 
ing as  this,  or  regards  its  discussions  as  merely  academic, 
because  its  members  have  not  the  power  themselves  to  give 
effect  to  their  resolutions.  The  open,  public  declaration  of  a 
principle  in  such  a  way  as  to  carry  evidence  that  it  has  the 
support  of  a  great  body  of  men  entitled  to  respect  has  a  won- 
derfully compelling  effect  upon  mankind.  The  adoption  of  a 
new  standard  of  human  action  is  never  the  result  of  force  or 
the  threat  of  force;  it  is  always  the  result  of  a  moral  process, 
and  to  the  initiation  and  continuance  of  that  process  public 
assertion  and  advocacy  of  the  principle  are  essential.  When 
that  process  has  been  worked  out  and  the  multitude  of  men 
whom  governments  represent  have  reached  the  point  of 
genuine  and  not  perfunctory  acceptance  of  the  new  standard, 
governments  conform  themselves  to  it. 


THE  HAGUE  PEACE  CONFERENCES  135 

It  is  a  common  saying  that  the  world  is  ruled  by  force  — 
that  the  ultimate  sanction  for  the  rules  of  right  conduct  be- 
tween nations  is  the  possibility  of  war.  That  is  less  than  a 
half  truth.  There  was  a  time  when  the  oflficial  intercourse 
between  nations  which  we  call  diplomacy  consisted  chiefly  of 
bargaining  and  largely  of  cheating  in  the  bargain.  Diplo- 
macy now  consists  chiefly  in  making  national  conduct  con- 
form or  appear  to  conform  to  the  rules  which  codify,  embody, 
and  apply  certain  moral  standards  evolved  and  accepted  in 
the  slow  development  of  civilization.  The  continual  and 
unceasing  process  of  diplomatic  iatercourse  by  which  these 
standards  are  pressed  upon  the  government  of  every  nation, 
backed  by  the  tremendous  power  of  the  opinion  of  the  civi- 
lized world,  enforced  by  the  desire  for  the  good  opinion  and 
apprehension  of  the  disfavor  of  mankind,  forms  a  strong 
external  restraint  upon  national  conduct;  and  these  stand- 
ards have  been  created  by  the  evolution  of  moral  as  opposed 
to  physical  forces. 

The  value  of  declaring  a  principle  may  be  illustrated  by  the 
effect  of  the  arbitration  convention  agreed  upon  in  the  Inter- 
national Peace  Conference  at  The  Hague  in  1899.  That 
convention  did  little  more  than  to  declare  principles;  it  pro- 
vided machiuery  by  which  there  might  be  arbitration,  but  it 
bound  nobody  to  arbitrate,  or  to  mediate,  or  to  accept  media- 
tion. The  machinery  provided  has  been  but  little  used ;  the 
arbitrations  at  The  Hague  have  been  few  and  not  of  the  first 
order  of  importance;  yet  no  one  can  for  a  moment  question 
the  enormous  impetus  given  to  the  principle  of  arbitration  of 
international  controversies  in  lieu  of  war  by  that  open  and 
public  declaration  that  such  controversies  ought  to  be 
arbitrated. 

The  thoughts  of  all  men  who  hope  for  the  peace  of  the 
world  are  now  turned  toward  the  Second  Peace  Conference 
so  soon  to  meet  at  The  Hague.    It  is  cheering  to  note  the 


136  INTERNATIONAL  SUBJECTS 

diflference  between  the  attitude  of  the  world  toward  this  Con- 
ference about  to  meet  and  the  way  in  which  the  world  looked 
upon  the  First  Conference  at  The  Hague  eight  years  ago. 
The  generous  impulse  and  noble  sentiment  of  the  Emperor  of 
Russia  which  dictated  the  call  for  that  Conference,  sup- 
ported by  his  great  power  and  commanding  position,  com- 
pelled respect,  or  the  appearance  of  respect,  from  all  the 
great  Powers;  yet  it  is  safe  to  say  that  the  prevailing  senti- 
ment among  the  Powers  as  to  the  practical  value  of  the 
Conference  was  one  of  polite  incredulity,  and  that  the  dele- 
gates whom  he  had  called  together  met  amid  an  almost 
universal  belief  that  nothing  would  or  could  be  accompHshed. 
The  primary  object  of  the  call  for  the  First  Conference  —  the 
accomplishment  of  the  great  design  which  Henry  IV  of 
France  conceived  three  centuries  ago  for  the  limitation  of 
armaments  in  Europe  —  failed  for  the  time;  yet  the  Con- 
ference accomplished  other  things  of  the  highest  value  to 
humanity,  and  it  demonstrated  for  the  first  time  in  the 
world's  history  the  potent  and  epoch-making  fact  that  a  con- 
gress of  the  world's  powers  convened,  not  to  deal  with  some 
concrete  question  demanding  immediate  solution,  but  con- 
vened to  consider  and  discuss  the  application  of  the  general 
and  fundamental  principles  of  justice  and  humanity  under  all 
circumstances  and  to  all  international  questions,  can  be 
made  a  practical  and  effective  agency  in  the  government  of 
the  world;  it  developed  a  new  method  and  a  new  power  for 
the  betterment  of  international  conduct,  far  superior  to  the 
ordinary  rules  of  diplomatic  intercourse,  far  broader  in  its 
scope,  far  nobler  in  its  purpose.  Upon  the  eve  of  the  Second 
Conference,  whose  very  possibility  demonstrates  the  success 
and  approves  the  wisdom  of  the  first,  it  seems  to  me  that  all 
men  who  love  their  fellow-men  and  who  hope  for  the  rule  of 
righteousness  and  peace  on  earth  should  feel  a  deep  sentiment 
of  gratitude  toward  that  sovereign  whose  noble  character  led 


THE  HAGUE  PEACE  CONFERENCES  137 

him  to  call  together  the  First  Conference  and  an  equally  deep 
sympathy  with  him  in  the  hard  and  difficult  task  in  which  he 
is  now  engaged  of  establishing  constitutional  government  in 
his  own  dominions. 

The  Second  Conference  is  about  to  meet  amid  universal 
recognition  that  it  is  of  practical  significance.  It  commands 
respect;  its  possibilities  are  the  object  of  solicitude;  the 
resolutions  which  it  may  reach  are  anticipated  as  of  probable 
potency  in  the  affairs  of  nations;  it  is  not  regarded  as  an  oc- 
casion for  mere  academic  discussion,  but  it  finds  its  place 
among  the  agencies  by  which  the  world  is  governed.  I  cannot 
doubt  that  it  will  accomplish  much  for  the  benefit  of  man- 
kind; that  in  many  things  it  will  bring  the  practice  of  nations 
into  closer  conformity  with  those  great  principles  of  conduct 
to  which  nations  have  accorded  such  ready  assent  in  theory 
but  such  reluctant  compliance  when  their  particular  interests 
are  involved. 

The  First  Conference  relegated  to  a  future  conference  the 
consideration  of  three  broad,  general  questions  affecting  the 
conduct  of  nations  toward  each  other:  first,  the  rights  and 
duties  of  neutrals;  second,  the  inviolability  of  private  prop- 
erty in  naval  warfare;  and,  third,  the  bombardment  of  towns, 
villages,  and  ports  by  a  naval  force.  It  is  understood  that  all 
these  subjects  shall  be  considered  at  the  Second  Conference. 

The  First  Conference  also  adopted  two  resolutions  relating 
to  naval  and  military  armament.    The  first  was: 

The  Conference  is  of  opinion  that  the  restriction  of  military  charges, 
which  are  at  present  a  heavy  burden  on  the  world,  is  extremely  desirable 
for  the  increase  of  the  material  and  moral  welfare  of  mankind. 

The  second  was: 

The  Conference  expresses  the  wish  that  the  governments,  taking  into 
consideration  the  proposals  made  at  the  Conference,  may  examine  the 
possibihty  of  an  agreement  as  to  the  limitation  of  armed  forces  by  land  and 
sea  and  of  war  budgets. 


138  INTERNATIONAL  SUBJECTS 

The  Government  of  the  United  States  has  been  of  the 
opinion  that  the  subject-matter  of  these  resolutions  ought  to 
be  further  considered  and  discussed  in  the  Second  Confer- 
ence; that  the  subject  is  in  the  nature  of  unfinished  business 
and  cannot  be  ignored,  but  must  be  dealt  with;   that  there 
ought  to  be  at  least  an  earnest  effort  to  reach,  or  to  make 
progress  toward  reaching,  some  agreement  under  which  the 
enormous  expenditure  of  money  and  the  enormous  with- 
drawal of  men  from  productive  industry  for  warlike  purposes 
may  be  reduced  or  arrested  or  retarded.    We  have  not  been 
unmindful  of  the  fact  that  the  question  is  one  which  primarily 
and  in  its  present  stage  concerns  Europe  rather  than  America; 
that  the  conditions  which  have  led  to  the  great  armaments  of 
the  present  day  are  mainly  European  conditions,  and  that  it 
would  ill  become  us  to  be  forward  or  dogmatic  in  a  matter 
which  is  so  much  more  vital  to  the  nations  of  Europe  than  to 
ourselves.     It  sometimes  happens,  however,  that  a  state 
having  Uttle  or  no  special  material  interest  in  a  proposal  can, 
for  that  very  reason,  advance  the  proposal  with  the  more 
advantage  and  the  less  prejudice.     The  American  Govern- 
ment accordingly,  at  an  early  stage  of  the  discussion  regard- 
ing the  program,  reserved  the  right  to  present  this  subject  for 
the  consideration  of  the   Conference.     Several  European 
Powers  have  also  given  notice  of  their  intention  to  present 
the  subject.    It  may  be  that  the  discussion  will  not  bring  the 
Second  Conference  to  any  definite  and  practical  conclusion; 
certainly  no  such  conclusion  can  be  effective  unless  it  meet 
with  practically  universal  assent,  for  there  can  be  no  effective 
agreement  which  binds  some  of  the  Great  Powers  and  leaves 
others  free.    There  are  serious  diflSculties  in  formulating  any 
definite  proposal  which  would  not  be  objectionable  to  some  of 
the  Powers,  and  upon  the  question  whether  any  specific  pro- 
posal is  unfair  and  injurious  to  its  interests  each  Power  must 
be,  and  is  entitled  to  be,  its  own  judge. 


THE  HAGUE  PEACE  CONFERENCES  139 

Nevertheless,  the  effort  can  be  made;  it  may  fail  in  this 
Conference,  as  it  failed  in  the  first,  but  even  if  it  fails  one 
more  step  will  have  been  taken  toward  ultimate  success. 
Long-continued  and  persistent  effort  is  always  necessary  to 
bring  mankind  into  conformity  with  great  ideals;  every 
great  advance  that  civilization  has  made  on  its  road  from 
savagery  has  been  upon  stepping-stones  of  failure,  and  a  good 
fight  bravely  lost  for  a  sound  principle  is  always  a  victory. 

The  Government  of  the  United  States  has  also  considered 
that  the  Second  Hague  Conference  might  well  agree  in  put- 
ting some  Hmitation  upon  the  use  of  force  for  the  collection 
of  ordinary  contract  debts  due  by  one  government  to  the 
citizens  of  another. 

It  has  long  been  the  established  policy  of  the  United  States 
not  to  use  its  army  and  navy  for  the  collection  of  such 
debts.  We  have  not  considered  the  use  of  force  for  such  a 
purpose  consistent  with  that  respect  for  the  independent 
sovereignty  of  other  members  of  the  family  of  nations  which 
is  the  most  important  principle  of  international  law  and  the 
chief  protection  of  weak  nations  against  oppression.  It 
seems  to  us  that  the  practice  is  injurious  in  its  general  effect 
upon  relations  of  nations  and  upon  the  welfare  of  weak  and 
disordered  states,  whose  development  ought  to  be  en- 
couraged in  the  interests  of  civilization,  and  that  it  offers 
frequent  temptation  to  bullying  and  oppression  and  to  un- 
necessary and  unjustifiable  warfare.  It  may  be  that  the 
non-payment  of  public  debts  may  be  accompanied  by  such 
circumstances  of  fraud  and  wrongdoing  or  violation  of 
treaties  as  to  justify  the  use  of  force  as  a  last  resort;  but  we 
hope  to  see  an  international  consideration  of  the  subject 
which  shall  discriminate  between  such  cases  and  the  simple 
non-performance  of  a  contract  with  a  private  person,  and  to 
see  a  resolution  in  favor  of  reliance  exclusively  upon  peace- 
ful means  in  cases  of  the  latter  class.    It  may  well  be  that 


140  INTERNATIONAL  SUBJECTS 

the  principle  of  arbitration  can  be  so  extended  in  its  appli- 
cation that  the  class  of  adventurers  who  have  long  been 
in  the  habit  of  trading  upon  the  necessities  of  weak  and 
distressed  governments  may  be  required  to  submit  their 
often  exorbitant  and  unconscionable  demands  to  an  impar- 
tial tribunal,  before  which  both  parties  may  be  heard  both 
as  to  the  validity  and  the  amount  of  their  claims  and  the 
time  and  manner  of  payment  to  which  they  are  entitled. 
The  record  of  the  cases  which  have  been  submitted  to  arbi- 
tration during  recent  years  shows  that  the  total  awards  of 
the  arbitral  tribimals  have  amounted  to  a  very  small  per- 
centage of  the  demands  submitted.  It  is  difficult  to  resist 
the  inference  that  the  claims  of  private  citizens  who  seek  the 
good  offices  of  their  own  governments  to  obtain  payment 
from  other  countries  generally  need  investigation  by  fair  tri- 
bunals rather  than  immediate  and  peremptory  enforcement. 
In  the  general  field  of  arbitration  we  are  surely  justified  in 
hoping  for  a  substantial  advance  both  as  to  scope  and  effec- 
tiveness. It  has  seemed  to  me  that  the  great  obstacle  to  the 
universal  adoption  of  arbitration  is  not  the  unwillingness  of 
civilized  nations  to  submit  their  disputes  to  the  decision  of  an 
impartial  tribunal;  it  is  rather  an  apprehension  that  the 
tribunal  selected  will  not  be  impartial.  In  a  dispatch  to  Sir 
Julian  Pauncefote  dated  March  5,  1896,  Lord  Salisbury 
stated  the  difficulty.     He  said  that  — 

If  the  matter  in  controversy  is  important,  so  that  defeat  is  a  serious 
blow  to  the  credit  or  the  power  of  the  Utigant  who  is  worsted,  that  interest 
becomes  a  more  or  less  keen  partisanship.  According  to  their  sympathies, 
men  wish  for  the  victory  of  one  side  or  another.  Such  conflicting  sym- 
pathies interfere  most  formidably  with  the  choice  of  an  impartial  arbitra- 
tor. It  woiJd  be  too  invidious  to  specify  the  various  forms  of  bias  by 
which,  in  any  important  controversy  between  two  great  powers,  the  other 
members  of  the  commonwealth  of  nations  are  visibly  affected.  In  the 
existing  condition  of  international  sentiment  each  great  power  could  iK)int 
to  nations  whose  admission  to  any  jury  by  whom  its  interests  were  to  be 
tried  it  would  be  boimd  to  challenge;  and  in  a  litigation  between  two  great 


THE  HAGUE  PEACE  CONFERENCES  141 

powers  the  rival  challenges  would  pretty  well  exhaust  the  catalogue  of  the 
nations  from  which  competent  and  suitable  arbiters  could  be  drawn.  It 
would  be  easy,  but  scarcely  decorous,  to  illustrate  this  statement  by  ex- 
amples. They  will  occur  to  anyone's  mind  who  attempts  to  construct  a 
panel  of  nations  capable  of  providing  competent  arbitrators,  and  will 
consider  how  many  of  them  would  command  equal  confidence  from  any 
two  litigating  powers. 

This  is  the  difficulty  which  stands  in  the  way  of  unrestricted  arbitration. 
By  whatever  plan  the  tribunal  is  selected,  the  end  of  it  must  be  that  issues 
in  which  the  litigant  states  are  most  deeply  interested  will  be  decided  by 
the  vote  of  one  man,  and  that  man  a  foreigner.  He  has  no  jury  to  find  his 
facts;  he  has  no  court  of  appeal  to  correct  his  law;  and  he  is  sure  to  be 
credited,  justly  or  not,  with  a  leaning  to  one  litigant  or  the  other. 

The  feeling  which  Lord  Salisbury  so  well  expressed  is,  I 
think,  the  great  stumbling-block  in  the  way  of  arbitration. 
The  essential  fact  which  supports  that  feeling  is  that  arbi- 
trators too  often  act  diplomatically  rather  than  judicially; 
they  consider  themselves  as  belonging  to  diplomacy  rather 
than  to  jurisprudence;  they  measure  their  responsibility  and 
their  duty  by  the  traditions,  the  sentiments,  and  the  sense  of 
honorable  obligation  which  have  grown  up  in  centuries  of 
diplomatic  intercourse,  rather  than  by  the  traditions,  the 
sentiments,  and  the  sense  of  honorable  obligation  which 
characterize  the  judicial  departments  of  civilized  nations. 
Instead  of  the  sense  of  responsibility  for  impartial  judgment 
which  weighs  upon  the  judicial  officers  of  every  civilized 
country,  and  which  is  enforced  by  the  honor  and  self-respect 
of  every  upright  judge,  an  international  arbitration  is  often 
regarded  as  an  occasion  for  diplomatic  adjustment.  Grant- 
ing that  the  diplomats  who  are  engaged  in  an  arbitration 
have  the  purest  motives;  that  they  act  in  accordance  with 
the  policy  they  deem  to  be  best  for  the  nations  concerned  in 
the  controversy;  assuming  that  they  thrust  aside  entirely 
in  their  consideration  any  interests  which  their  own  countries 
may  have  in  the  controversy  or  in  securing  the  favor  or  avert- 
ing the  displeasure  of  the  parties  before  them  —  nevertheless 


142  INTERNATIONAL  SUBJECTS 

it  remains  that  in  such  an  arbitration  the  Htigant  nations  find 
that  questions  of  poHcy,  and  not  simple  questions  of  fact  and 
law,  are  submitted  to  alien  determination,  and  an  appreciable 
part  of  that  sovereignty  which  it  is  the  function  of  every 
nation  to  exercise  for  itself  in  determining  its  own  policy  is 
transferred  to  the  arbitrators. 

An  illustration  of  this  view  is  to  be  found  in  the  fact  that 
one  of  the  features  of  the  extraordinary  advance  made  by  the 
nations  of  South  America  in  the  arts  of  peace  is  the  develop- 
ment of  arbitration  for  the  settlement  of  disputes,  and  espe- 
cially boundary  disputes,  to  a  greater  degree  than  in  any 
other  part  of  the  world.  This  has  been  faciKtated  by  the 
almost  complete  detachment  of  South  American  poUtics  from 
the  national  politics  of  Europe;  so  that  it  has  been  easy  for  the 
South  American  states  to  find  arbitrators  who  neither  knew 
nor  cared  for  any  political  question  in  South  America,  and 
who^  therefore,  have  been  able  to  determine  the  questions 
before  them  with  sole  reference  to  the  merits  of  the  question, 
as  a  trained  and  upright  judge  decides  a  case  submitted  to 
his  court. 

What  we  need  for  the  further  development  of  arbitration 
is  the  substitution  of  judicial  action  for  diplomatic  action, 
the  substitution  of  judicial  sense  of  responsibility  for  diplo- 
matic sense  of  responsibility.  We  need  for  arbitrators,  not 
distinguished  pubhc  men  concerned  in  all  the  international 
questions  of  the  day,  but  judges  who  will  be  interested  only 
in  the  question  appearing  upon  the  record  before  them. 
Plainly,  this  end  is  to  be  attained  by  the  establishment  of  a 
court  of  permanent  judges,  who  will  have  no  other  occupation 
and  no  other  interest  but  the  exercise  of  the  judicial  faculty 
under  the  sanction  of  that  high  sense  of  responsibility  which 
has  made  the  courts  of  justice  in  the  civilized  nations  of  the 
world  the  exponents  of  all  that  is  best  and  noblest  in  modem 
civiUzation. 


THE  HAGUE  PEACE  CONFERENCES  143 

Let  me  add  a  few  words  of  warning  concerning  your  anti- 
cipations of  what  the  Second  Peace  Conference  is  to  do.  Do 
not  expect  too  much  from  it. 

It  is  an  essential  characteristic  of  such  a  conference  that  it 
shall  deal,  not  with  matters  upon  which  the  nations  differ,  but 
with  matters  upon  which  the  nations  agree.  Immaterial 
differences  may  be  smoothed  away;  misimderstandings  may 
be  explained;  consideration  and  discussion  along  lines  that 
do  not  run  counter  to  any  immediate  and  specific  interest 
may  work  out  methods  of  applying  general  principles  in  such 
a  way  as  to  prevent  future  differences;  progress  may  be 
made  toward  agreement  upon  matters  which  are  not  yet 
ripe  for  complete  adjustment;  but  the  moment  an  attempt  is 
made  to  give  such  a  conference  any  coercive  effect,  the  mo- 
ment any  number  of  nations  endeavor  to  use  the  conference 
for  the  purpose  of  compelling  any  other  nation  to  do  what  it 
deems  inconsistent  with  its  interests,  that  moment  the 
conference  fails. 

Such  a  conference  is  an  agency  of  peace;  not  the  peace  of 
conquest,  but  the  peace  of  agreement;  not  enforced  agree- 
ment, but  willing  and  cheerful  agreement.  So  far  as  the 
nations  can  go  together  in  such  an  agreement  the  confer- 
ence can  go,  and  no  farther. 

Many  lovers  of  their  kind,  certain  that  the  principles 
which  they  see  so  clearly  ought  to  be  accepted  of  all  men,  are 
unmindful  of  the  many  differences  which  divide  the  nations 
in  the  competition  for  trade  and  wealth,  for  honor  and  pres- 
tige; unmindful  that  the  selfishness  and  greed  and  willing- 
ness to  do  injustice  which  have  marked  all  human  history 
still  exist  in  the  world;  unmindful  that  because  of  these  the 
instinct  of  self -protection  engenders  distrust  and  suspicion 
among  the  nations;  and  they  will  be  sadly  disappointed 
because  The  Hague  Conference  of  1907  does  not  realize  their 
dreams  and  usher  in  the  parliament  of  man  —  the  federation 


144  INTERNATIONAL  SUBJECTS 

of  the  world.  But  let  them  take  heart.  A  forward  step  will 
be  taken;  an  advance  will  be  made  toward  the  reign  of  peace 
and  justice  and  righteousness  among  men,  and  that  advance 
will  go  just  so  far  as  the  character  of  the  great  mass  of  civi- 
lized men  permits.  There  lies  the  true  measure  of  possibility 
and  the  true  origin  of  reforming  force..  Arbitrations  and 
mediations,  treaties  and  conventions,  peace  resolutions, 
declarations  of  principle,  speeches  and  writings,  are  as  naught 
unless  they  truly  represent  and  find  a  response  in  the  hearts 
and  minds  of  the  multitude  of  the  men  who  make  up  the 
nations  of  the  earth,  whose  desires  and  impulses  determine 
the  issues  of  peace  and  war.  The  end  toward  which  this 
assemblage  strives  —  the  peace  of  the  world  —  will  be 
attained  just  as  rapidly  as  the  millions  of  the  earth's  peoples 
learn  to  love  peace  and  abhor  war;  to  love  justice  and  hate 
wrongdoing;  to  be  considerate  in  judgment  and  kindly  in 
feeling  toward  aUens  as  toward  their  own  friends  and  neigh- 
bors; and  to  desire  that  their  own  countries  shall  regard  the 
rights  of  others  rather  than  be  grasping  and  overreaching. 
The  path  to  universal  peace  is  not  through  reason  or  intellec- 
tual appreciation,  but  through  the  development  of  peace- 
loving  and  peace-keeping  character  among  men;  and  that 
this  development,  slow  though  it  be  as  measured  by  our 
short  lives,  is  proceeding  with  steady  and  unremitting  ad- 
vance from  generation  to  generation  no  student  of  history 
can  question.  The  greatest  benefit  of  the  Peace  Conference 
of  1907  will  be,  as  was  that  of  the  Peace  Conference  of  1899, 
in  the  fact  of  the  conference  itself;  in  its  powerful  influence 
moulding  the  characters  of  men;  in  the  spectacle  of  all  the 
great  powers  of  the  earth  meeting  in  the  name  of  peace,  and 
exalting,  as  worthy  of  honor  and  desire,  national  self-control 
and  considerate  judgment  and  willingness  to  do  justice. 


THE  IMPORTANCE   OF  JUDICIAL 
SETTLEMENT 

OPENING  ADDRESS  AT  THE  INTERNATIONAL  CONFERENCE 

OF  THE  AMERICAN  SOCIETY  FOR  JUDICIAL  SETTLEMENT 

OF  INTERNATIONAL  DISPUTES,  WASHINGTON,  D.C. 

DECEMBER  15,  1910 

In  introducing  the  speaker  the  presiding  officer,  James  Brown  Scott,  said: 
For  centuries  it  was  the  plan  of  the  philosopher  and  the  hoi>e  of  the  philan- 
thropist that  some  means  might  be  found  by  which  international  conflicts  should  be 
settled  peacefully  without  a  resort  to  arms,  and  the  dreamers  of  dreams,  phil- 
osophers and  philanthropists,  proposed  that  the  questions  at  issue  between  nations 
should  be  settled  either  in  conference,  in  diplomatic  assemblies  or  by  temporary 
tribunals  of  arbitration  created  for  the  express  purpose.  That  which  the  dreamers 
of  dreams  have  dreamed,  and  the  philosophers  have  planned,  that  which  the  phil- 
anthropists saw  before  them  as  if  in  a  vision,  took  definite  form  and  shape  in  the 
year  1907,  when  our  accomplished  Secretary  of  State,  the  Honorable  Elihu  Root, 
instructed  the  American  delegation  td  the  Second  Hague  Peace  Conference  to  pro- 
pose a  permanent  court  to  be  composed  of  judges  who  should  act  under  a  sense  of 
judicial  responsibility,  and  which  coiut  should  represent  the  various  judicial  systems 
of  the  world.  Pursuant  to  these  instructions  the  delegation,  under  the  leadership  of 
the  Honorable  Joseph  H.  Choate,  introduced  such  a  proposition,  and  after  weeks 
of  discussion  and  debate  the  Conference  adopted  a  draft  convention  consisting  of 
thirty-five  articles  for  the  organization,  the  jurisdiction  and  the  procedure  of  a 
permanent  court  of  arbitral  justice,  leaving  it,  however,  to  the  nations  to  constitute 
the  court,  through  diplomatic  channels,  when  an  agreement  should  be  reached  upon 
the  appointment  of  the  judges. 

WE  all  of  us  agree,  and  a  very  large  part  of  the  world 
agrees,  that  there  ought  to  be  an  end  to  war,  that  it  is 
brutal,  wasteful  and  stupid.  We  have  been  talking  about  it 
for  a  great  many  years.  The  volume  of  sound  has  swelled 
and  grown  into  a  great  chorus  of  universal  acclaim  for  the 
principles  of  peace  with  justice. 

But  all  great  movements  have  a  definite  development. 
They  pass  from  stage  to  stage.  The  declaration  of  principles 
in  the  beginning  is  but  the  first  step,  and  the  method  of  de- 
velopment is  from  the  general  to  the  particular,  from  the 


146  INTERNATIONAL  SUBJECTS 

theoretical  to  the  practical,  from  the  proposal  to  the  accom- 
plishment. 

Now,  the  movement  for  peace,  for  the  settlement  of  the 
disputes  of  mankind  by  peaceful  means,  is,  it  seems  to  me, 
passing  from  one  stage  to  another  in  these  wonderful  years 
in  which  we  live.  Having  accumulated  enough  momentum, 
by  means  of  the  missionary  work  that  has  been  done,  by 
means  of  the  propaganda  which  has  been  prosecuted,  we  are 
beginning  now  to  pass  into  the  stage  of  careful,  thoughtful, 
definite,  certain  inquiry  into  the  specific  causes  of  war  and 
the  specific  remedies  to  be  applied.  So  only  can  progress  be 
made  towards  a  practical  conclusion. 

The  organization  of  this  Society  is  one  of  the  great  steps 
forward  in  this  second  stage  of  development  of  the  world- 
wide peace  movement. 

The  causes  of  war  may  be  roughly,  and  of  course  super- 
ficially and  generally  distributed  into  three  categories.  First, 
there  are  the  real  differences  between  nations  as  to  their 
respective  rights.  One  nation  claims  territory  and  another 
claims  the  same  territory.  One  nation  claims  the  right  to 
trade  in  a  particular  way,  at  a  particular  place,  and  another 
nation  claims  an  exclusive  right.  There  are  a  myriad  ways 
in  which  nations  may  come  into  dispute  regarding  real  rights, 
each  nation  believing  that  its  side  of  the  controversy  is 
based  upon  justice. 

A  second  category  is  what  I  might  call  that  of  policy.  The 
policy  of  a  country  may  be  to  push  its  trade,  to  acquire  terri- 
tory, to  obtain  a  dominant  influence,  to  insist  upon  a  certain 
course  of  action  by  other  countries  for  its  own  protection 
asserting  that  a  different  course  of  conduct  would  be  danger- 
ous to  its  safety.  All  those  questions  of  policy,  however,  are 
to  a  considerable  degree,  and  very  frequently,  dependent 
upon  the  determination  of  certain  facts  and  the  decision  of 
certain  questions  of  international  law. 


JUDICIAL  SETTLEMENT  147 

A  third  category  of  causes  of  war  may  be  described  as  being 
matters  of  feeling.  Deep  and  bitter  feeling  is  often  awakened 
between  peoples  of  different  countries.  We  have  got  away 
from  the  time  when  the  pique  or  whim  of  an  individual  mon- 
arch might  plunge  his  subjects  into  a  bloody  and  devastating 
war,  but  we  remain  in  the  time  when  great  masses  of  people 
in  different  countries  may  become  indignant  over  some  slight 
or  insult,  or  a  course  of  conduct  which  they  deem  to  be  injuri- 
ous and  unfair.  These  matters  of  feeling,  which  are  the  most 
dangerous  of  all  causes  of  war  because  they  make  the  peoples 
of  two  different  countries  want  to  fight,  —  these  matters  of 
feeling  ordinarily  depend  in  the  beginning  upon  different 
views  regarding  the  specific  rights  of  the  two  countries. 

Now,  as  to  the  first  kind  of  causes  of  war,  the  real  contro- 
versies about  rights,  it  is  plain  that  they  ought  to  be  decided, 
and  that  all  war  based  upon  them  may  easily  be  obviated  by 
having  them  decided,  in  accordance  with  the  rules  of  right 
reason. 

As  to  the  two  other  classes  of  reasons  for  war,  it  is  plain 
that  the  little  beginnings  out  of  which  they  arise,  the  excuses 
upon  which  they  depend,  may  also  be  disposed  of  if  taken  in 
time,  and  disposed  of  by  reason  and  kindly  consideration.  So 
that  while  it  does  not  cover  the  whole  ground,  while  it  does 
not  by  any  means  solve  the  whole  question,  yet  at  the  bottom 
of  all  the  attempts  practically  to  dispose  of  the  causes  of  war, 
lies  the  peaceable  decision  of  questions  of  fact  and  law  in 
accordance  with  the  rules  of  justice. 

Now  we  have  been  for  a  good  many  years  more  and  more 
seeking  to  accomplish  that  by  means  of  arbitration,  and  the 
machinery  for  arbitration  has  been  carefully  devised  and 
agreed  upon  by  the  nations  of  the  earth  at  the  two  successive 
Hague  conferences,  so  that  it  is  comparatively  easy  for 
nations  to  have  recourse  to  that  method  of  settling  their 
disputes. 


148  INTERNATIONAL  SUBJECTS 

But  there  are  some  difficulties  about  arbitration,  practical 
difficulties  in  the  way  of  settling  questions.  I  have  said  many 
times  and  in  many  places  that  I  do  not  think  the  difficulty 
that  stands  in  the  way  of  arbitration  today  is  an  unwilling- 
ness on  the  part  of  the  civilized  nations  of  the  earth  to  submit 
their  disputes  to  impartial  decision.  I  think  the  difficulty  is 
a  doubt  on  the  part  of  civilized  nations  as  to  getting  an  im- 
partial decision.  And  that  doubt  arises  from  some  character- 
istics of  arbitral  tribunals  which  are  very  difficult  to  avoid. 

In  the  first  place,  these  tribunals  are  ordinarily  made  up  by 
selecting  publicists,  men  of  pubhc  affairs,  great  civil  servants, 
members  of  the  foreign  offices,  men  trained  to  diplomacy; 
and  the  inevitable  tendency  is,  and  the  result  often  has  been, 
in  the  majority  of  cases  has  been,  that  the  arbitral  tribunal 
simply  substitutes  itself  for  the  negotiators  of  the  two  parties, 
and  negotiates  a  settlement.  Well,  that  is  quite  a  different 
thing  from  submitting  your  views  of  right  and  wrong,  your 
views  of  the  facts  and  the  law  on  which  you  base  your  claims 
to  right,  to  the  decision  of  a  tribunal,  of  a  court.  It  is  merely 
handing  over  your  interests  to  somebody  to  negotiate  for 
you;  and  there  is  a  very  widespread  reluctance  to  do  that  in 
regard  to  many  cases;  and  the  nearer  the  question  at  issue 
approaches  the  verge  of  the  field  of  policy,  the  stronger  the 
objection  to  doing  that. 

Another  difficulty  is  that  the  arbitral  tribunals,  of  course 
being  made  up  largely  of  members  from  other  countries,  the 
real  decision  ordinarily  being  made  by  arbiters  who  come 
from  other  countries  and  not  from  the  countries  concerned, 
questions  have  to  be  presented  to  men  trained  under  dif- 
ferent systems  of  law,  with  different  ways  of  thinking  and  of 
looking  at  matters.  There  is  a  very  wide  difference  between 
the  way  in  which  a  civil  lawyer  and  a  common-law  lawyer 
will  approach  a  subject,  and  it  is  sometimes  pretty  hard  for 
them  to  imderstand  each  other  even  though  they  speak  the 


JUDICIAL  SETTLEMENT  149 

same  language,  while  if  they  speak  different  languages  it  is 
still  more  difficult. 

Another  difficulty  is  that  a  large  part  of  the  rules  of  inter- 
national law  are  still  quite  vague  and  undetermined,  and 
upon  many  of  them,  and  especially  upon  those  out  of  which 
controversy  is  most  likely  to  arise,  different  countries  take 
different  views  as  to  what  the  law  is  and  ought  to  be.  And 
no  one  can  tell  how  one  of  these  extemporized  tribunals, 
picked  at  haphazard,  or  upon  the  best  information  the  nego- 
tiators of  two  countries  can  get,  —  no  one  can  tell  what  views 
they  are  going  to  take  about  questions  of  international  law, 
or  how  they  are  going  to  approach  subjects  and  deal  with 
them. 

Now,  it  has  seemed  to  me  very  clear  that  in  view  of  these 
practical  difficulties  standing  in  the  way  of  our  present  sys- 
tem of  arbitration,  the  next  step  by  which  the  system  of 
peaceable  settlement  of  international  disputes  can  be  ad- 
vanced, the  pathway  along  which  it  can  be  pressed  forward 
to  universal  acceptance  and  use,  is  to  substitute  for  the  kind 
of  arbitration  we  have  now,  in  which  the  arbitrators  proceed 
according  to  their  ideas  of  diplomatic  obligation,  real  courts 
where  judges,  acting  under  the  sanctity  of  the  judicial  oath, 
pass  upon  the  rights  of  countries,  as  judges  pass  upon  the 
rights  of  individuals,  in  accordance  with  the  facts  as  found 
and  the  law  as  established.  With  such  tribunals,  which  are 
continuous,  and  composed  of  judges  who  make  it  their  life 
business,  you  will  soon  develop  a  bench  composed  of  men 
who  have  become  familiar  with  the  ways  in  which  the  people 
of  every  country  do  their  business  and  do  their  thinking,  and 
you  will  have  a  gradual  growth  of  definite  rules,  of  fixed  inter- 
pretation, and  of  established  precedents,  according  to  which 
you  may  know  your  case  will  be  decided.  It  is  with  that  view 
that  I  have  felt  grateful  to  the  gentlemen  who  have  been 
giving  their  time  and  efforts  to  the  organization  and  estab- 


150  INTERNATIONAL  SUBJECTS 

lishment  of  this  Society.  I  am  sure  that  it  is  a  step  along  the 
scientific  and  practical  method  of  putting  into  operation  all 
the  principles  that  we  have  been  preaching  and  listening  to 
for  so  many  years.  It  is  practical,  and  I  beheve  it  will  be 
effective. 

There  is  a  great  deal  of  work  for  the  Society  to  do.  Our 
people  here  in  the  United  States  are  probably  more  ready  to 
assent  to  such  a  view  as  this  than  the  people  of  any  other 
country  in  the  world,  because  we  have  been  long  accustomed 
to  the  existence  of  a  great  tribunal,  a  part  of  whose  duty  it  is 
to  sit  in  judgment  upon  the  question  whether  the  govern- 
ments of  the  sovereign  states  and  the  government  of  our  own 
nation,  in  their  acts,  conform  to  the  great  principles  of  justice 
and  right  conduct  embodied  in  our  Constitution.  That  ar- 
rangement, of  embodying  the  eternal  principles  of  justice  in 
a  written  instrument,  investing  a  court  with  the  power  to 
declare  all  acts  of  congresses,  and  legislatures,  and  presi- 
dents and  governors,  void  and  of  no  effect  when  they  fail  to 
conform  to  those  principles,  is,  it  seems  to  me,  the  greatest 
contribution  of  America  to  the  political  science  of  the  world. 
We  are  accustomed  to  seeing  the  actions  of  the  men  who  hold 
the  power,  the  actions  of  the  legislative  bodies  that  hold  the 
purse  strings,  submitted  to  the  adjudication  of  the  court 
which  has  no  power  to  enforce  its  decrees,  except  the  confi- 
dence of  the  whole  people  behind  it.  We  are  accustomed  to 
that,  and  it  seems  natural  to  us  that  nations,  however  great, 
and  rulers,  however  powerful,  should  go  before  a  court  and 
submit  the  question  whether  their  actions  and  their  views 
accord  with  the  principles  of  justice.  But  it  does  not  seem 
so  to  most  of  the  world.  It  is  rather  a  new  idea,  and  it  will 
take  time  and  argimient  and  exposition  to  bring  the  world  in 
general  to  the  acceptance  of  that  view.  And  upon  that  long 
journey  this  Society  has  entered.  A  prosperous  voyage  to 
it,  and  a  safe  arrival! 


JUDICIAL  SETTLEMENT  151 

I  have  said  that  the  time  has  come  for  practical  dealing 
with  specific  causes  and  specific  remedies.  Do  not  mider- 
stand  me  as  believing  that  this  is  to  be  substituted  for  the 
continuous  and  unwearied  assertion  and  reassertion  of  the 
great  principles  upon  which  the  movement  for  peace  and 
justice  must  depend  in  all  parts  and  in  every  phase.  For, 
however  great  may  be  the  material  wealth  and  power  of  these 
great  nations,  after  all,  what  rules  the  world,  the  one  thing 
that  is  eternal  and  all-powerful,  is  the  intangible  and  the 
sentimental. 

To  the  first  meeting  of  the  American  Society  for  Judicial  Settlement  of 
International  Disputes,  Mr.  Root  sent  a  letter,  from  which  the  following 
is  an  extract: 

I  beg  to  say  to  your  guests  that  I  sympathize  very  strongly  with 
their  object  and  believe  that  the  proposed  organization  is  adapted  to 
render  a  great  public  service.  I  assume  that  the  new  organization  is 
to  have  a  definite,  specific  object  which  may  be  indicated  by  em- 
phasizing the  word  "  judicial "  in  its  title  to  indicate  a  distinction 
between  that  kind  of  settlement  of  international  disputes  and  the 
ordinary  arbitration  as  it  has  been  imderstood  in  the  past  and  is 
generally  understood  now. 

I  assume  that  you  are  going  to  urge  that  disputes  between  nations 
shall  be  settled  by  judges  acting  under  the  judicial  sense  of  honorable 
obligation,  with  a  judicial  idea  of  impartiality,  rather  than  by  diplo- 
mats acting  under  the  diplomatic  ideas  of  honorable  obligation  and 
feeling  bound  to  negotiate  a  settlement  rather  than  to  pass  without 
fear  or  favor  upon  questions  of  fact  and  law. 

It  seems  to  me  that  such  a  change  in  the  fundamental  idea  of  what 
an  arbitration  should  be  is  essential  to  any  very  great  further  exten- 
sion of  the  idea  of  arbitration.  I  have  been  much  surprised,  however, 
to  see  how  many  people  there  are  of  ability  and  force  who  do  not 
agree  with  this  idea  at  all,  particularly  p>eople  on  the  other  side  of 
the  Atlantic.  The  extraordinary  scope  of  judicial  ix)wer  in  this 
country  has  accustomed  us  to  see  the  operations  of  government  and 
questions  arising  between  sovereign  states  submitted  to  judges  who 
apply  the  test  of  conformity  to  established  principles  and  rules  of 
conduct  embodied  in  our  constitutions. 

It  seems  natural  and  projier  to  us  that  the  conduct  of  government 
affecting  substantial  rights,  and  not  depending  upon  questions  of 


152  INTERNATIONAL  SUBJECTS 

policy,  should  be  passed  upon  by  the  courts  when  occasion  arises. 
It  is  easy,  therefore,  for  Americans  to  grasp  the  idea  that  the  same 
method  of  settlement  should  be  applied  to  questions  growing  out  of 
the  conduct  of  nations  and  not  involving  questions  of  policy. 

In  coimtries,  however,  where  the  courts  exercise  no  such  power, 
the  idea  is  quite  a  new  one  to  most  people,  and,  if  it  is  to  prevail, 
there  must  be  a  process  of  education.  Such  a  process  will  natiu-ally 
receive  its  chief  impulse  in  the  United  States,  and  I  hop>e  your  new 
society  will  give  such  an  impulse  with  vigor  and  accurate  direction. 


NOBEL  PEACE  PRIZE  ADDRESS 

REQUIRED  BY  THE  STATUTES  OF  THE   NOBEL   FOUNDATION 

UPON  THE  AWARD   OF  THE  PEACE  PRIZE 

FOR  THE  YEAR  1912 

The  Swedish  scientist,  Alfred  Nobel,  inventor  of  dynamite,  died  December  10, 
1896,  and  established  by  his  will  a  fund  of  approximately  nine  million  dollars,  the 
interest  of  which  should  every  year  be  distributed  to  those  who  had  contributed 
most  to  "  the  good  of  humanity."  The  interest  thus  provided  for  was  to  be  divided 
into  five  equal  shares  and  distributed  "  one  to  the  person  who  in  the  domain  of 
physics  has  made  the  most  important  discover^'  or  invention,  one  to  the  person  who 
has  made  the  most  important  chemical  discovery  or  invention,  one  to  the  person 
who  has  made  the  most  important  discovery  in  the  domain  of  medicine  or  physi- 
ology, one  to  the  person  who  in  literature  has  provided  the  most  excellent  work  of 
an  idealistic  tendency,  and  one  to  the  person  who  has  tvorked  most  or  best  for  the 
fraternization  of  nations,  and  the  abolition  or  redtidion  of  standing  armies,  and  the 
calling  and  propagating  of  peace  congresses." 

The  fund  became  available  in  the  year  1901,  and  the  individual  prize,  amounting  to 
about  $40,000,  is  awarded  annually  on  the  anniversary  of  Mr.  Nobel's  death. 

The  Nobel  Peace  Prize  for  1912,  reserved,  in  conformity  with  article  5  of  the 
statutes,  for  the  year  1913,  was  conferred  upon  Elihu  Root.  The  committee  made 
its  decisions  known  to  the  public  on  December  10,  1913,  the  anniversary  of  Mr. 
Nobel's  death,  in  the  hall  of  the  Nobel  Institute  at  Christiania.  Mr.  LSvland, 
president  of  the  committee,  presided  at  the  ceremony.  The  secretary  of  the  com- 
mittee, Mr.  Moe,  delivered  an  address  on  Mr.  Root's  political  career,  from  which 
the  following  is  an  extract: 

In  August,  1899,  he  [Mr.  Root]  was  appointed  Secretary  of  War  by  Presi- 
dent McKinley  and  remained  in  oflBce  diu-ing  Mr.  Roosevelt's  administration 
until  February,  1904.  Upon  the  death  of  Secretary  of  State  John  Hay,  in  July, 
1905,  Mr.  Root  succeeded  to  that  oflSce  and  directed  the  foreign  affairs  of  the 
United  States  up  to  the  expiration  of  Mr.  Roosevelt's  term,  in  March,  1909. 
It  was  his  task,  as  Secretary  of  War,  to  lay  the  bases  of  the  plan  for  the  re- 
organization of  Cuba  and  the  Philippines  in  their  relation  to  the  United  States 
after  the  Spanish-American  war. 

As  Secretary  of  State,  he  made  a  notable  journey  to  South  America,  during 
which  he  visited  the  Third  Pan-American  Congress  at  Rio  de  Janeiro.  In  1907, 
he  visited  Mexico.  The  object  of  these  visits  was  to  remove  the  long-standing 
distrust  of  their  Anglo-Saxon  sister  on  the  part  of  the  Latin  Republics,  and  to 
further  the  efforts  made  in  the  interest  of  Pan-Americanism.  In  1908  there 
was  founded  at  Washington  the  Pan-American  Bureau,  imder  the  direction 
of  the  Secretary  of  State  of  the  United  States,  in  cooperation  with  the 
Ministers  of  the  American  Republics  accredited  to  Washington.  Mr.  Root 
took  the  initiative  in  calling  a  Central  American  Peace  Congress  at  Washington 

1S8 


154  INTERNATIONAL  SUBJECTS 

in  1907.   The  following  year  a  permanent  court  for  the  Central  American  states 
was  created  at  Cartago,  Costa  Rica. 

The  most  difficult  task  that  fell  to  Mr.  Root  as  Secretary  of  State  was  the 
settlement  of  the  dispute  between  the  United  States  and  Japan  on  the  question 
of  Japanese  immigrants  in  California,  in  1906-07.  It  is  impossible  to  give  here 
the  history  of  this  great  question,  which  assumed  a  threatening  aspect  in  the 
winter  of  1907.  It  will  suffice  to  say  that  the  peaceful  settlement  of  the  dispute, 
clinched  by  the  action  of  the  Congress  at  Washington  in  passing  the  immigra- 
tion act  of  March  19,  1907,  followed  by  the  identic  note  of  November,  1908, 
was  due  to  the  efforts  of  Mr.  Root. 

Long  alone  among  American  statesmen  in  his  stand  on  the  question,  he 
vigorously  attacked  the  act  of  August,  1912,  providing  for  the  free  passage  of 
American  coastwise  vessels  through  the  Panama  Canal.  His  eloquent  speech 
in  the  Senate  on  January  21,  1913,  was  distributed  among  the  friends  of  peace 
throughout  the  entire  world.  Since  his  retirement  Mr.  Root  has  been  recog- 
nized as  the  leader  of  the  peace  movement  in  the  United  States.  He  is  President 
of  the  American  Society  of  International  Law  and  of  the  great  Carnegie 
Endowment  for  International  Peace.^ 
In  accordance  with  the  statutes  of  the  Nobel  Foimdation,  the  laureate  of  the 

Peace  Prize  is  required  to  deliver  an  address  in  person  at  Christiania,  Norway.    The 

date  for  the  delivery  of  Mr.  Root's  address  was  set  for  September  8,  1914,  but 

delivery  was  prevented  by  the  outbreak  of  the  European  war. 

The  address  prepared  by  Mr.  Root  for  that  occasion  is  here  printed  exactly  as  it 

was  prepared  for  delivery  before  the  outbreak  of  the  war,  without  the  change  of  a 

word  or  syllable. 

THE  humanitarian  purpose  of  Alfred  Nobel  in  establish- 
ing the  peace  prize  which  bears  his  name  was  doubtless 
not  merely  to  reward  those  who  should  promote  peace  among 
nations,  but  to  stimulate  thought  upon  the  means  and 
methods  best  adapted,  under  the  changing  conditions  of 
future  years,  to  approach  and  ultimately  attain  the  end  he 
so  much  desired. 

The  apparent  simplicity  of  the  subject  is  misleading. 
Recognition  of  the  horrors  of  war  and  the  blessings  of  peace, 
acceptance  of  the  dogma  "  War  is  wrong  and  to  keep  the 
peace  a  duty,"  are  so  universal  that  upon  the  surface  it 
seems  only  necessary  to  state  a  few  incontrovertible  truths 
and  to  press  them  upon  the  attention  of  mankind,  in  order 
to  have  war  end  and  peace  reign  perpetually. 

1  Translated  from  Les  Prix  Nobel  en  1913,  Stockholm  (1914),  pp.  64-65. 


NOBEL  PRIZE  ADDRESS  155 

Yet  the  continual  recurrence  of  war  and  the  universally 
increasing  preparations  for  war  based  upon  expectation  of  it 
among  nations  all  of  whom  declare  themselves  in  favor  of 
peace,  indicate  that  intellectual  acceptance  of  peace  doctrine 
is  not  sufficient  to  control  conduct,  and  that  a  general  feeling 
in  favor  of  peace,  however  sincere,  does  not  furnish  a  strong 
enough  motive  to  withstand  the  passions  which  lead  to  war 
when  a  cause  of  quarrel  has  arisen.  The  methods  of  peace 
propaganda  which  aim  at  establishing  peace  doctrine  by 
argument  and  by  creating  a  feeling  favorable  to  peace  in 
general,  seem  to  fall  short  of  reaching  the  springs  of  human 
action  and  of  dealing  with  the  causes  of  the  conduct  which 
they  seek  to  modify.  It  is  much  like  treating  the  symptoms 
of  disease  instead  of  ascertaining  and  dealing  with  the  cause 
of  the  symptoms.  The  mere  assemblage  of  peace-loving 
people  to  interchange  convincing  reasons  for  their  common 
faith;  mere  exhortation  and  argument  to  the  public  in  favor 
of  peace  in  general  fall  short  of  the  mark. 

They  are  useful,  they  serve  to  strengthen  the  faith  of  the 
participants,  they  tend  very  gradually  to  create  a  new  stand- 
ard of  conduct,  just  as  exhortations  to  be  good  and  demon- 
strations that  honesty  is  the  best  policy  have  a  certain  utility 
by  way  of  suggestion.  But  they  do  not,  as  a  rule,  reach  or 
extirpate  or  modify  the  causes  of  war. 

Occasionally  some  man  with  exceptional  power  of  state- 
ment or  of  feeling,  and  possessed  by  the  true  missionary 
spirit,  will  deHver  a  message  to  the  world,  putting  old  truths 
in  such  a  way  as  to  bite  into  the  consciousness  of  civilized 
peoples  and  move  mankind  forward  a  little,  with  a  gain 
never  to  be  altogether  lost.  But  the  mere  repetition  of  the 
obvious  by  good  people  of  average  intelligence,  while  not 
without  utility  and  not  by  any  means  to  be  despised  as  an 
agency  for  peace,  nevertheless  is  subject  to  the  drawback 
that  the  unregenerate  world  grows  weary  of  iteration  and 


156  INTERNATIONAL  SUBJECTS 

reacts  in  the  wrong  direction.  The  limitation  upon  this 
mode  of  promoting  peace  lies  in  the  fact  that  it  consists  in  an 
appeal  to  the  civilized  side  of  man,  while  war  is  the  product  of 
forces  proceeding  from  man's  original  savage  nature.  To 
deal  with  the  true  causes  of  war  one  must  begin  by  recogniz- 
ing as  of  prime  relevancy  to  the  solution  of  the  problem  the 
famihar  fact  that  civilization  is  a  partial,  incomplete,  and, 
to  a  great  extent,  superficial  modification  of  barbarism.  The 
point  of  departure  of  the  process  to  which  we  wish  to  con- 
tribute is  the  fact  that  war  is  the  natural  reaction  of  human 
nature  in  the  savage  state,  while  peace  is  the  result  of  ac- 
quired characteristics.  War  was  forced  upon  mankind  in  his 
original  civil  and  social  condition.  The  law  of  the  survival 
of  the  fittest  led  inevitably  to  the  survival  and  predominance 
of  the  men  who  were  effective  in  war  and  who  loved  it 
because  they  were  effective.  War  was  the  avenue  to  all  that 
mankind  desired.  Food,  wives,  a  place  in  the  sun,  freedom 
from  restraint  and  oppression,  wealth  of  comfort,  wealth  of 
luxiuy ,  respect,  honor,  power,  control  over  others,  were  sought 
and  attained  by  fighting.  Nobody  knows  through  how  many 
thousand  of  years  fighting  men  have  made  a  place  for  them- 
selves while  the  weak  and  peaceable  have  gone  to  the  wall. 
Love  of  fighting  was  bred  in  the  blood  of  the  race,  because  those 
who  did  not  love  fighting  were  not  suited  to  their  environ- 
ment and  perished.  Grotius  himself  sets  war  first  in  the  title 
of  his  great  work,  De  Jure  Belli  ac  Pads,  as  if,  in  his  mind, 
war  was  the  general  and  usual  condition  with  which  he  was  to 
deal,  and  j)eace  the  occasional  and  incidental  field  of  inter- 
national relation.  And  indeed  the  work  itself  deals  chiefly 
with  war,  and  only  incidentally  with  pjeaceful  relations. 

In  attempting  to  bring  mankind  to  a  condition  of  per- 
manent peace  in  which  war  will  be  regarded  as  criminal  con- 
duct, just  as  civilized  communities  have  been  brought  to  a 
condition  of  permanent  order,  broken  only  by  criminals  who 


NOBEL  PRIZE  ADDRESS  157 

war  against  society,  we  have  to  deal  with  innate  ideas,  im- 
pulses and  habits,  which  became  a  part  of  the  cave  man's 
nature  by  necessity  from  the  conditions  under  which  he 
lived;  and  these  ideas  and  impulses  stUl  survive  more  or  less 
dormant  imder  the  veneer  of  civilization,  ready  to  be  excited 
to  action  by  events  often  of  the  most  trifling  character.  As 
Lord  Bacon  says  "  Nature  is  often  hidden,  sometimes  over- 
come, seldom  extinguished."  To  eradicate  or  modify  or  cm'b 
the  tendencies  which  thus  survive  among  civilized  men  is  not 
a  matter  of  intellectual  conviction  or  training.  It  is  a  matter 
primarily  of  development  of  character  and  the  shifting  of 
standards  of  conduct  —  a  long,  slow  process  in  which  ad- 
vance is  to  be  measured,  not  by  days  and  years  but  by 
generations  and  centuries  in  the  life  of  nations. 

The  attractive  idea  that  we  can  now  have  a  parliament  of 
man  with  authority  to  control  the  conduct  of  nations  by 
legislation  or  an  international  police  force  with  power  to 
enforce  national  conformity  to  rules  of  right  conduct  is  a 
counsel  of  perfection.  The  world  is  not  ready  for  any  such 
thing,  and  it  cannot  be  made  ready  except  by  the  practical 
surrender  of  the  independence  of  nations,  which  lies  at  the 
basis  of  the  present  social  organization  of  the  civilized  world. 
Such  a  system  would  mean  that  each  nation  was  liable  to  be 
lawfully  controlled  and  coerced  by  a  majority  of  alien  powers. 
That  majority  alone  could  determine  when  and  for  what 
causes  and  to  what  ends  the  control  and  coercion  should  be 
exercised.  Human  nature  must  have  come  much  nearer 
perfection  than  it  is  now,  or  will  be  in  many  generations,  to 
exclude  from  such  a  control  prejudice,  selfishness,  ambition 
and  injustice.  An  attempt  to  prevent  war  in  this  way  would 
breed  war,  for  it  would  destroy  local  self-government  and 
drive  nations  to  war  for  liberty.  There  is  no  nation  in  the 
world  which  would  seriously  consider  a  proposal  so  shocking 
to  the  national  pride  and  patriotism  of  its  people. 


158  INTERNATIONAL  SUBJECTS 

To  help  in  the  most  practical  and  eflScient  way  towards 
making  peace  permanent,  it  is  needful  to  inquire  with  some 
analysis  what  are  the  specific  motives  and  impulses,  the 
proximate  causes  which,  under  the  present  conditions  of  the 
civilized  world,  urge  nations  to  the  point  where  the  war 
passion  seizes  upon  them.  And  then  we  should  inquire  what 
are  the  influences  which  naturally  tend  or  may  be  made  to 
tend  towards  checking  the  impulse,  destroying  the  motive, 
preventing  the  proximate  cause,  before  passion  has  become 
supreme  and  it  is  too  late. 

It  is  to  be  observed  that  every  case  of  war  averted  is  a  gain 
in  general,  for  it  helps  to  form  a  habit  of  peace,  and  com- 
munity habits  long  continued  become  standards  of  conduct. 
The  life  of  the  community  conforms  to  an  expectation  of  their 
continuance,  and  there  comes  to  be  an  instinctive  opposition 
to  any  departure  from  them. 

The  first  and  most  obvious  cause  for  international  contro- 
versy which  suggests  itself  is  in  the  field  of  international 
rights  and  obligations.  Claims  of  right  and  insistence  upon 
obligations  may  depend  upon  treaty  stipulations  or  upon 
the  rules  of  international  law  or  upon  the  sense  of  natural 
justice  applied  to  the  circumstances  of  a  particular  case,  or 
upon  disputed  facts.  Upon  all  these  there  are  continually 
arising  controversies  as  to  what  are  the  true  facts;  what  is 
the  rule  of  international  law  applicable  to  the  case;  what 
is  the  true  interpretation  of  the  treaty;  what  is  just  and  fair 
under  the  circumstances.  This  category  does  not  by  any 
means  cover  the  entire  field  out  of  which  causes  of  war  arise, 
but  no  one  should  underestimate  its  importance.  Small 
differences  often  grow  into  great  quarrels,  and  honest  dif- 
ferences of  opinion  frequently  produce  controversies  in 
which  national  amour  propre  is  involved  and  national  honor, 
dignity  and  prestige  are  supposed  to  be  at  stake.  Rival 
claimants  to  an  almost  worthless  strip  of  land  along  a  dis- 


NOBEL  PRIZE  ADDRESS  159 

puted  boundary,  a  few  poor  fishermen  contesting  each  others' 
rights  to  set  nets  in  disputed  waters,  may  break  into  violence 
which  will  set  whole  nations  aflame  with  partisanship  upon 
either  side.  Reparation  demanded  for  injury  to  a  citizen  or 
an  insult  to  a  flag  in  foreign  territory  may  symbolize  in  the 
feeling  of  a  great  people  their  national  right  to  independence, 
to  respect,  and  to  an  equal  place  in  the  community  of  nations. 
Ihe  people  of  a  country,  wholly  mistaken  as  to  their  national 
rights,  honestly  ignorant  of  their  international  obligations, 
may  become  possessed  of  a  real  sense  of  injustice,  of  deep 
resentment,  and  of  a  sincere  belief  that  the  supreme  sacrifice 
of  war  is  demanded  by  love  of  country,  its  liberty  and 
independence,  when  in  fact  their  belief  has  no  just  founda- 
tion whatever. 

In  this  field  the  greatest  advance  is  being  made  towards 
reducing  and  preventing  in  a  practical  and  effective  way  the 
causes  of  war,  and  this  advance  is  proceeding  along  several 
different  lines.  First,  by  providing  for  the  peaceable  settle- 
ment of  such  controversies  by  submission  to  an  impartial 
tribunal.  Up  to  this  time  that  provision  has  taken  the  form 
of  arbitration,  with  which  we  are  all  familiar.  There  have 
been  occasional  international  arbitrations  from  very  early 
times,  but  arbitration  as  a  system,  a  recognized  and  custom- 
ary method  of  diplomatic  procedure  rather  than  an  excep- 
tional expedient,  had  its  origin  in  The  Hague  Conference  of 
1899.  It  is  interesting  to  recall  the  rather  contemptous  re- 
ception accorded  to  the  Convention  for  the  Pacific  Settlement 
of  International  Disputes  concluded  at  that  conference,  and 
to  the  Permanent  Court  at  The  Hague  which  it  created.  The 
convention  was  not  obligatory.  No  power  was  bound  to 
comply  with  it.  The  cynicism  with  which  the  practical 
diplomatist  naturally  regards  the  idealist  pronounced  it  a 
dead  letter.  But  the  convention  expressed,  and,  by  express- 
ing, established,  a  new  standard  of  international  conduct 


160  INTERNATIONAL  SUBJECTS 

which  practical  idealism  had  long  been  gradually  approach- 
ing, for  which  thoughtful  men  and  women  in  all  civilized 
lands  had  been  vaguely  groping,  which  the  more  advanced 
nations  welcomed  and  the  more  backward  nations  were 
ashamed  to  reject.  Let  me  quote  the  recitals  with  which  the 
delegates  prefaced  their  work: 

Animated  by  a  strong  desire  to  concert  for  the  maintenance  of  the 
general  peace; 

Resolved  to  second  by  their  best  efforts  the  friendly  settlement  of 
international  disputes; 

Recognizing  the  solidarity  which  unites  the  members  of  the  society  of 
civilized  nations; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the 
appreciation  of  international  justice; 

Convinced  that  the  permanent  institution  of  a  Court  of  Arbitration, 
accessible  to  all,  in  the  midst  of  the  independent  Powers,  will  contribute 
effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular 
organization  of  arbitral  procedure; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace 
Conference  that  it  is  exi)edient  to  record  in  an  international  agreement  the 
principles  of  equity  and  right,  on  which  are  based  the  security  of  states 
and  the  welfare  of  p>eoples,  etc. 

These  declarations,  although  enforced  by  no  binding  stipu- 
lation, nevertheless  have  become  principles  of  action  in 
international  affairs,  because,  through  the  progress  of  civili- 
zation and  the  influence  of  many  generations  of  devoted 
spirits  in  the  cause  of  humanity,  the  world  had  become  ready 
for  the  setting  up  of  the  standard.  The  convention  would 
have  been  a  dead  letter  if  the  world  had  not  been  made  ready 
for  it,  and,  because  the  world  was  ready,  conformity  to  the 
standard  year  by  year  has  become  more  universal  and  com- 
plete. Since  this  convention,  which  was  binding  up>on  no 
state,  one  hundred  and  thirteen  obligatory  general  treaties  of 
arbitration  have  been  made  between  powers  who  have  taken 
part  in  The  Hague  Conferences,  and  sixteen  international 
controversies  have  been  heard  and  decided,  or  are  pending 


NOBEL  PRIZE  ADDRESS  161 

before  that  tribunal  according  to  the  last  report  of  the 
Administrative  Council  of  the  Court. 

Quite  apart  from  the  statistics  of  cases  actually  heard  or 
pending,  it  is  impossible  to  estimate  the  eflFeet  produced  by 
the  existence  of  this  court,  for  the  fact  that  there  is  a  court 
to  which  appeal  may  be  made  always  leads  to  the  settlement 
of  far  more  controversies  than  are  brought  to  judgment.  Nor 
can  we  estimate  the  value  of  having  this  system  a  part  of  the 
common  stock  of  knowledge  of  civilized  men,  so  that,  when 
an  international  controversy  arises,  the  first  reaction  is,  not 
to  consider  war  but  to  consider  peaceful  litigation. 

Plainly,  the  next  advance  to  be  urged  along  this  line  is  to 
pass  on  from  an  arbitral  tribunal,  the  members  of  which  are 
specifically  selected  from  the  general  list  of  the  court  for  each 
case,  and  whose  service  is  but  an  incident  in  the  career  of  a 
diplomatist  or  a  publicist,  to  a  permanent  court  composed 
of  judges  who  devote  their  entire  time  to  the  performance  of 
judicial  duties  and  proceed  in  accordance  with  a  sense  of  judi- 
cial obligation,  not  to  adjust  or  compromise  differences,  but 
to  decide  upon  rights  in  accordance  with  the  facts  and  the  law. 

Long  steps  in  this  direction  were  made  in  the  Second  Hague 
Conference  by  the  convention  for  the  estabHshment  of  a 
permanent  international  prize  court  and  by  the  formulation 
and  adoption  of  a  draft  convention  relative  to  the  creation  of 
a  general  judiqial  arbitration  court.  This  draft  convention 
lacked  nothing  of  completion  except  an  agreement  upon  the 
method  by  which  the  judges  were  to  be  selected.  Towards 
the  creation  of  such  a  court  the  best  efforts  of  those  who  wish 
to  promote  peace  should  be  directed. 

The  second  line  of  advance  in  this  same  field  of  interna- 
tional controversy  is  in  pressing  forward  the  development  of 
international  law  and  the  agreement  of  nations  upon  its  rules. 
Lord  Mansfield  described  the  law  of  nations  as  "  founded 
upon  justice,  equity,  convenience,  the  reason  of  the  thing. 


162  INTERNATIONAL  SUBJECTS 

and  confirmed  by  long  usage."  There  are  multitudes  of 
events  liable  to  occur  frequently  in  the  intercourse  of  nations, 
r^arding  which  there  has  never  been  any  agreement  as  to 
what  is  just,  equitable,  or  convenient,  and,  as  to  many  of  the 
classes  of  controversy,  different  views  are  held  by  different 
nations,  so  that  in  a  large  part  of  the  field  with  which  an 
arbitral  tribimal  or  international  court  should  deal  there  is 
really  no  law  to  be  applied.  Where  there  is  no  law,  a  sub- 
mission to  arbitration  or  to  judicial  decision  is  an  appeal,  not 
to  the  rule  of  law  but  to  the  unknown  opinions  or  predilec- 
tions of  the  men  who  happen  to  be  selected  to  decide.  The 
development  of  the  peaceable  settlement  of  international  dis- 
putes by  the  decision  of  impartial  tribunals  waits  therefore 
uix)n  the  further  development  of  international  law  by  a  more 
complete  establishment  of  known  and  accepted  rules  for  the 
government  of  international  conduct. 

In  this  direction  also  great  progress  has  been  made  within 
recent  years.  The  ordinary  process  of  reaching  rules  of  inter- 
national law  through  the  universal  assent  of  nations,  ex- 
pressed as  particular  cases  arise  from  time  to  time  in  the 
ordinary  course  of  international  affairs,  is  so  slow  that, 
instead  of  making  progress  towards  a  comprehensive  law  of 
nations  by  such  a  method,  the  progress  of  the  law  has  been 
outstripped  by  the  changes  of  condition  in  international 
affairs,  so  that  the  law  has  been  growing  less  and  less  ade- 
quate to  settle  the  questions  continually  arising.  The 
Declaration  of  Paris,  in  1856,  by  a  few  simple  ndes  dealing, 
not  with  particular  cases,  but  looking  to  the  future  through 
an  agreement  of  the  p>owers  signing  the  convention,  was  a  new 
departure  in  the  method  of  forming  international  law.  That 
method  has  developed  into  the  action  of  the  two  Hague  Con- 
ferences of  1899  and  1907,  which  were"  really  law-making 
bodies,  establishing,  by  the  imanimous  vote  of  the  powers, 
rules  of  conduct  for  the  future,  covering  extensive  portions 


NOBEL  PRIZE  ADDRESS  163 

of  the  field  of  international  conduct.  The  action  of  The 
Hague  Conferences  would  have  been  impossible  if  it  had  not 
been  for  the  long  continued  and  devoted  labors  of  the  InstUvt 
de  Droit  International,  which,  in  its  annual  meetings  for  forty 
years,  has  brought  together  the  leaders  of  thought  in  the 
science  of  the  law  of  nations  in  all  the  countries  of  the  civi- 
lized world  to  discuss  unofficially,  with  a  free  and  full  expres- 
sion of  p>ersonal  opinion,  the  unsettled  problems  as  to  what 
the  law  is  and  ought  to  be.  The  conclusions  of  that  body 
furnished  to  the  successive  Hague  Conferences  the  matured 
results  of  years  of  well  directed  labor  and  bore  the  same  rela- 
tion to  the  deliberations  of  the  conferences  as  the  report  of  a 
committee  of  a  legislative  body  in  furnishing  the  basis  for 
deliberation  and  action.  Their  work  should  be  encouraged 
and  their  example  should  be  followed. 

Further  Hague  Conferences  should  be  insisted  upon.  They 
should  be  made  to  reciu"  at  regular  periods  without  requiring 
the  special  initiative  of  any  country.  The  process  of  formu- 
lating and  securing  agreement  upon  rules  of  international 
law  should  be  pressed  forward  in  every  direction. 

There  is  a  third  line  of  progress,  httle,  if  any,  less  important 
than  the  two  already  mentioned,  and  that  is,  the  instruction 
of  students  and  of  the  great  bodies  of  the  people  of  civilized 
coimtries  in  the  knowledge  of  international  law.  Under  the 
modem  development  of  constitutional  governments,  with 
varying  degrees  of  extension  of  suffrage,  more  and  more  the 
people  who  cast  the  ballots  determine  the  issues  of  peace  and 
war.  No  government  now  embarks  in  war  without  the  as- 
surance of  popular  support.  It  is  not  uncommon  in  modem 
times  to  see  governments  straining  every  nerve  to  keep  the 
peace,  and  the  people  whom  they  represent,  with  patriotic 
enthusiasm  and  resentment  over  real  or  fancied  wrongs 
urging  them  forward  to  war.  Nothing  is  more  important  in 
the  preservation  of  peace  than  to  secure  among  the  great 


164  INTERNATIONAL  SUBJECTS 

mass  of  the  people  living  under  constitutional  government  a 
just  conception  of  the  rights  which  their  nation  has  against 
others  and  of  the  duties  their  nation  owes  to  others.  The 
popular  tendency  is  to  listen  approvingly  to  the  most  extreme 
statements  and  claims  of  politicians  and  orators  who  seek 
popularity  by  declaring  their  own  country  right  in  every- 
thing and  other  countries  wrong  in  everything.  Honest 
people,  mistakenly  believing  in  the  justice  of  their  cause,  are 
led  to  support  injustice.  To  meet  this  tendency  there  should 
be  not  merely  definite  standards  of  law  to  be  applied  to 
international  relations,  but  there  should  be  general  public 
understanding  of  what  those  standards  are.  Of  course  it  is 
not  possible  that  all  the  people  of  any  country  can  become 
familiar  with  international  law,  but  there  may  be  such  knowl- 
edge and  leadership  of  opinion  in  every  country  on  the  part 
of  the  most  intelligent  and  best  educated  men  that  in  every 
community  mistaken  conceptions  can  be  corrected  and  a 
true  view  of  rights  and  obligations  inculcated.  To  attain 
this  end  much  has  been  done  and  much  is  in  contemplation. 
Societies  of  international  law  have  been  formed  in  many 
countries  for  the  discussion  of  international  questions  and 
the  publication  and  distribution  of  the  results.  Many 
journals  of  international  law  have  been  established  and  are 
rapidly  increasing  their  circulation  and  influence.  More  and 
more  colleges  and  universities  are  establishing  chairs  and 
giving  instruction  in  international  law  to  their  students.  A 
further  step  is  about  to  be  taken  at  The  Hague  by  the  estab- 
lishment there  of  an  international  school  of  international  law 
to  which  scholars  from  all  over  the  civilized  world  will  come 
and  in  which  the  great  masters  of  the  science  have  under- 
taken to  give  instruction.  There  can  be  no  better  augm-y  for 
the  success  of  the  new  institution  than  the  fact  that  it  found 
its  origin  in  the  general  enthusiasm  of  Ludwig  von  Bar  of 
GiJttingen,  of  Otfried  Nippold  of  Frankfort,  of  Demetrius 


NOBEL  PRIZE  ADDRESS  165 

Sturdza  of  Roumania,  and  of  T.M.C.  Asser  of  Holland;  and 
that  it  has  for  its  president  Louis  Renault  of  France.  The 
distinctive  feature  of  this  new  departiu*e  is  that  it  will  bring 
together  teachers  and  students  from  many  countries;  so 
that  their  intercourse  and  instruction  will  tend  towards  the 
unification  of  rules  and  the  establishment  of  a  general  stand- 
ard of  law  instead  of  perpetuating  the  differing  and  often 
antagonistic  conceptions  which  obtain  within  the  limits  of 
different  nations. 

Along  all  these  lines  of  practical  effort  for  peace  in  the 
development  of  arbitration  and  judicial  decision  in  the  de- 
velopment of  a  definite  system  of  law  determining  the  rights 
and  obligations  of  nations,  and  in  the  enlightenment  of  the 
civilized  nations  as  to  what  their  rights  and  obligations  are, 
the  present  generation  has  rendered  a  service  in  the  cause  of 
peace  surpassing  that  of  many  centuries  gone  before,  and  in 
further  development  along  these  same  lines  the  present  gen- 
eration has  before  it  a  golden  opportunity  for  further  service. 

There  is,  however,  another  class  of  substantive  causes  of 
war  which  the  agencies  I  have  described  do  not  reach  directly. 
This  comprises  acts  done  or  demanded  in  pursuance  of  na- 
tional policy,  and  ordinarily  either  for  the  enlargement  or 
protection  of  territory  or  for  trade  or  industrial  advantage. 
The  conduct  of  a  nation  under  such  a  policy  is  often  regarded 
by  other  nations  as  unwarranted  aggression  or  as  threatening 
their  safety  or  their  rights.  Illustrations  of  this  kind  of 
question  are  to  be  found  in  the  protean  forms  of  the  Eastern 
question  and  of  the  balance  of  power  in  Europe,  in  the  asser- 
tion of  the  Monroe  Doctrine  by  the  United  States;  in  the 
position  of  Germany  regarding  the  settlement  of  Morocco, 
before  the  Conference  of  Algeciras;  in  the  attitude  of  Great 
Britain  regarding  Agadir,  after  that  conference.  It  is  plain 
that,  under  the  present  organization  of  civilization  in  inde- 
pendent nationahties,  questions  of  pubhc  policy  supposed  to 


166  INTERNATIONAL  SUBJECTS 

be  vital  cannot  be  submitted  to  arbitration,  because  that 
would  be  an  abdication  of  independence  and  the  placing  of 
government  'pro  tardo  in  the  hands  of  others.  The  indepen- 
dence of  a  state  involves  that  state's  right  to  determine  its 
own  domestic  policy  and  to  decide  what  is  essential  to  its  own 
safety. 

It  does  not  foUow,  however,  that  we  are  without  oppor- 
timity  to  promote  and  strengthen  specific  influences  tending 
to  diminish  or  prevent  causes  of  war  of  this  description.  In 
the  first  place,  when  there  is  a  poUcy  of  intentional  aggres- 
sion, inspired  by  a  desire  to  get  possession  of  the  territory  or 
the  trade  of  another  country,  right  or  wrong,  a  pretext  is 
always  sought.  No  nation  now  sets  forth  to  despoil  another 
upon  the  avowed  groimd  that  it  desires  the  spoils.  Some 
ground  of  justification  is  always  alleged.  The  wolf  always 
charges  the  lamb  with  muddying  the  stream.  The  frank  and 
simple  days  of  the  Roman  proconsul  and  of  the  robber  baron 
have  passed,  and  three  things  have  happened:  First,  there 
has  come  to  be  a  public  opinion  of  the  world;  second,  that 
opinion  has  set  up  a  new  standard  of  national  conduct  which 
condemns  unjustified  aggression;  and  third,  the  public 
opinion  of  the  worid  punishes  the  violation  of  its  standard. 
It  has  not  been  very  long  since  the  jjeople  of  ^ach  country 
were  concerned  almost  exclusively  "with  their  own  affairs, 
and,  with  but  few  individual  exceptions,  neither  knew  nor 
cared  what  was  going  on  outside  their  own  boundaries.  All 
that  has  changed.  The  spread  of  popular  education;  the 
enormous  increase  in  the  production  and  circulation  of  news- 
papers and  periodicals  and  cheap  books;  the  competition  of 
the  press,  which  ranges  the  world  for  news;  the  tel^raph, 
which  carries  instantly  knowledge  of  all  important  events 
everywhere  to  all  parts  of  the  world;  the  new  mobility  of 
mankind,  which  availing  itself  of  the  new  means  of  travel  by 
steamship  and  railroad,  with  its  new  freedom  under  the 


NOBEL  PRIZE  ADDRESS  167 

recently  recognized  right  of  expatriation  and  the  recently 
established  right  of  free  travel,  moves  to  and  fro  by  the 
million  across  the  bomidaries  of  the  nations;  the  vast  exten- 
sion of  international  commerce;  the  recognition  of  inter- 
dependence of  the  peoples  of  different  nations  engendered  by 
this  commerce  and  this  intercourse;  their  dependence  upon 
each  other  for  the  supply  of  their  needs  and  for  the  profitable 
disposal  of  their  products,  for  the  preservation  of  health,  for 
the  promotion  of  morals  and  for  the  increase  of  knowledge 
and  the  advance  of  thought;  —  all  these  are  creating  an  in- 
ternational community  of  knowledge  and  interest,  of  thought 
and  feeling.  In  the  hundreds  of  international  associations 
reported  by  Senator  LaFontaine*s  UOffice  Central  at  Brus- 
sels, men  of  all  nations  are  learning  to  think  internationally 
about  science  and  morals  and  hygiene  and  religion  and 
society  and  business.  Gradually,  everything  that  happens 
in  the  world  is  coming  to  be  of  interest  everywhere  in  the 
world,  and,  gradually,  thoughtful  men  and  women  every- 
where are  sitting  in  judgment  upon  the  conduct  of  all  na- 
tions. Some  very  crass  and  indefensible  things  have  been 
done  by  nations  within  the  past  few  years,  but  no  one  can 
read  the  discussions  about  those  national  acts  without  see- 
ing that  the  general  judgment  of  mankind  has  sunk  deep 
into  the  hearts  of  the  people  of  the  countries  responsible; 
that  a  great  new  force  is  at  work  in  international  affairs; 
that  the  desire  for  approval  and  the  fear  of  condemnation  by 
the  contemporary  opinion  of  the  civilized  world  is  becoming 
a  powerful  influence  to  control  national  conduct.  True,  we 
are  but  at  the  beginning,  but  it  is  the  beginning  of  a  great 
new  era  in  which  the  public  opinion  of  mankind  renders 
judgment,  not  upon  peace  and  war,  for  a  vast  majority  of 
mankind  is  in  favor  of  war  when  that  is  necessary  for  the 
preservation  of  Hberty  and  justice,  but  upon  the  just  and 
unjust  conduct  of  nations,  as  the  public  opinion  of  each 


168  INTERNATIONAL  SUBJECTS 

community  passes  upon  the  just  and  unjust  conduct  of  its 
individual  members.  The  chief  force  which  makes  for  peace 
and  order  in  the  commimity  of  individuals  is  not  the  police 
officer,  with  his  club,  but  it  is  the  praise  and  blame,  the  honor 
and  shame,  which  follow  observance  or  violation  of  the  com- 
munity's standards  of  right  conduct.  In  the  new  era  that  is 
dawning  of  the  world's  pubhc  opinion  we  need  not  wait  for 
the  international  policeman,  with  his  artillery,  for,  when  any 
people  feels  that  its  government  has  done  a  shameful  thing 
and  has  brought  them  into  disgrace  in  the  opinion  of  the 
world,  theirs  will  be  the  vengeance  and  they  will  inflict  the 
punishment. 

Two  conclusions  from  all  these  considerations  are  quite 
obvious:  First,  that  the  development  and  understanding  of 
international  law  and  the  habit  of  submitting  international 
controversies  to  judicial  decision  will  continually  tend  to 
hinder  wanton  aggression,  because  it  will  tend  to  make  it 
more  difficult  to  find  pretexts,  excuses,  or  justffication. 
Second,  that  quite  apart  from  ailment  and  exhortation 
concerning  war  and  peace,  there  is  a  specific  line  of  effort 
along  which  those  who  seek  to  promote  peace  may  most 
usefully  proceed;  by  insisting  upon  a  willingness  to  do  justice 
among  nations,  and  this,  not  justice  according  to  the  pos- 
sibly excited  and  warped  opinion  of  the  particular  nation, 
but  according  to  the  general  public  judgment  of  the  civilized 
world;  by  condemning  injustice  on  the  part  of  nations  as  we 
condemn  injustice  on  the  part  of  individuals;  by  pressing 
upon  the  peoples  of  the  earth  a  consciousness  that  if  they  are 
arrogant  and  grasping  and  overbearing  and  use  their  power 
to  oppress  and  desix)il  the  weak,  they  will  be  disgraced  in  the 
estimation  of  mankind.  Such  an  effort  is  not  a  denial  of 
the  innate  impulses  of  the  race,  but  is  an  appeal  to  them.  It 
accords  with  the  line  of  historic  development.  The  taboo 
of  savage  tribes  is  nothing  else.     The  social  penalties  of 


NOBEL  PRIZE  ADDRESS  169 

civilized  communities  are  the  same  thing.  The  theoretical 
postulate  of  all  diplomatic  discussion  between  nations  is  the 
assumed  willingness  of  every  nation  to  do  justice.  The  line 
of  least  resistance  in  the  progress  of  civihzation  is  to  make 
that  theoretical  postulate  real  by  the  continually  increasing 
force  of  the  world's  public  opinion. 

Yet  there  are  other  influences  tending  in  the  same  direction 
which  may  be  usefully  promoted.  The  self-interest  which  so 
often  prompts  nations  to  unjust  aggression  can  no  longer 
safely  assume  that  its  apparent  profit  is  real;  for  a  nation 
which  has  been  built  up  by  the  industry  and  enterprise  of  its 
people,  which  depends  upon  its  products  and  the  marketing 
of  them,  upon  its  commerce  and  the  peaceful  intercourse  of 
commerce  for  its  prosperity,  the  prize  of  aggression  must  be 
rich  indeed  to  counterbalance  the  injury  sustained  by  the 
interference  of  war  with  both  production  and  commerce. 
At  the  same  time,  freedom  of  trade  regardless  of  political 
control  is  diminishing  the  comparative  value  of  extension  of 
territory.  The  old  system  of  exploitation  of  colonies  and  the 
monopolization  of  their  trade  for  the  benefit  of  the  mother 
country  has  practically  disappeared.  The  best  informed  men 
are  coming  to  understand  that,  under  modem  conditions, 
the  prosperity  of  each  nation  is  enhanced  by  the  prosperity 
of  all  other  nations;  and  that  the  government  which  acquires 
pohtical  control  over  new  territory  may  gratify  pride  and 
minister  to  ambition,  but  can  have  only  a  slight  effect  to 
advance  the  welfare  of  its  people. 

The  support  of  these  statements  rests  upon  the  facts  of 
economic  science.  If  they  are  true,  as  I  am  sure  we  all  be- 
lieve them  to  be,  they  should  be  forced  upon  the  attention  of 
the  peoples,  not  by  mere  assertion,  which  avails  but  little, 
but  by  proof  drawn  from  the  rich  stores  of  evidence  to  be 
found  in  the  history  of  mankind.  For  the  accomplishment  of 
this  purpose  a  meeting  of  eminent  economists  and  publicists 


170  INTERNATIONAL  SUBJECTS 

was  held  three  years  ago  at  Berne.  They  came  from  Den- 
mark, Holland,  Belgium,  Great  Britain,  France,  Germany, 
Switzerland,  Italy,  Austria-Hungary,  the  United  States  and 
Japan.  For  some  weeks  they  devoted  themselves  to  the 
preparation  of  a  program  for  systematic,  scientific  investiga- 
tion into  the  historical  and  economic  causes  and  effects  of 
war.  For  the  three  years  which  have  ensued  they  have  been 
engaged,  with  ample  and  competent  assistance,  in  pursuing 
their  investigations.  The  first  installments  of  their  work  are 
ready  for  pubhcation,  and  they  reconvened  last  month  to 
review  what  has  been  done  and  to  lay  down  the  lines  of 
further  work.  The  results  of  their  labors,  when  made 
available,  should  be  eagerly  sought  by  every  lover  of  peace 
who  is  competent  by  tongue  or  pen  to  be  a  teacher  of  his 
fellow-men,  for  we  may  be  confident  they  will  show  that 
while  the  sacrifice  of  war  may  be  demanded  for  justice,  for 
liberty,  for  national  life,  yet  war  is  always  a  sacrifice,  and 
never  is  a  rational  mode  of  promoting  material  prosperity. 

There  yet  remain  certain  disposing  causes,  which,  quite 
apart  from  real  substantive  questions  in  controversy,  operate 
upon  national  feeling  and  give  injurious  effect  to  trifling  or 
fancied  occasions  for  offense.  There  is  no  international  con- 
troversy so  serious  that  it  cannot  be  settled  if  both  parties 
really  wish  to  settle  it.  There  are  few  controversies  so  trifling 
that  they  cannot  be  made  the  occasion  for  war  if  the  parties 
really  wish  to  fight.  Among  these  disposing  causes  which 
create  an  atmosphere  of  belligerency  are: 

Race  and  local  prejudice,  breeding  dislike  and  hatred 
between  the  peoples  of  different  countries. 

Exaggerated  national  amour  jrropre,  which  causes  exces- 
sive sensitiveness  and  excessive  resentment  of  foreign 
criticism  or  opposition. 

With  these  go  the  popular  assumption,  often  arrogant, 
often  ignorant,  that  the  extreme  claims  of  one's  country  are 


NOBEL  PRIZE  ADDRESS  171 

always  right  and  are  to  be  rigidly  insisted  upon  as  a  point  of 
national  honor.  With  them  go  intolerance  of  temperate  dis- 
cussion, of  kindly  consideration,  and  of  reasonable  concession. 

Under  these  feelings  insulting  words  and  conduct  towards 
foreign  governments  and  people  become  popular,  and  brag- 
gart defiance  is  deemed  patriotic.  Under  them  the  ambi- 
tious aspirants  of  domestic  politics  seek  preferment  through 
avenues  of  military  success. 

And  under  them  deep  and  real  suspicions  of  the  sinister 
purpose  of  other  nations  readily  take  possession  of  a  people, 
who  become  ready  to  believe  that  an  attack  by  their  own 
country  is  the  only  recourse  to  guard  effectually  against  an 
attack  upon  their  country  by  others,  and  that  patriotism 
requires  them  to  outstrip  other  countries  in  armament  and 
preparation  for  war. 

Prejudice  and  passion  and  suspicion  are  more  dangerous 
than  the  incitement  of  self-interest  or  the  most  stubborn 
adherence  to  real  differences  of  opinion  regarding  rights.  In 
private  life  more  quarrels  arise,  more  implacable  resentment 
is  caused,  more  lives  are  sacrificed,  because  of  insult  than 
because  of  substantial  injury.    And  it  is  so  with  nations. 

The  remedy  is  the  same.  When  friends  quarrel  we  try  to 
dissipate  their  misimderstandings,  to  soften  their  mutual 
feelings,  and  to  bring  them  together  in  such  a  way  that  their 
friendship  may  be  renewed.  Misunderstanding  and  preju- 
dice and  dislike  are,  as  a  rule,  the  fruits  of  isolation.  There 
is  so  much  of  good  in  human  nature  that  men  grow  to  like 
each  other  upon  better  acquaintance,  and  this  points  to 
another  way  in  which  we  may  strive  to  promote  the  peace  of 
the  world.  That  is,  by  international  conciliation  through 
intercourse,  not  the  formal  intercourse  of  the  traveller  or  the 
merchant,  but  the  intercourse  of  real  acquaintance,  of  per- 
sonal knowledge,  of  little  courtesies  and  kindly  consideration; 
by  the  exchange  of  professors  between  universities,  by  the 


172  INTERNATIONAL  SUBJECTS 

exchange  of  students  between  countries;  by  the  visits  to 
other  countries  on  the  part  of  leaders  of  opinion,  to  be  re- 
ceived in  private  hospitality  and  in  public  conference;  by 
the  spreading  of  correct  information  through  the  press;  by 
circulating  and  attracting  attention  to  expressions  of  praise 
and  honor  rather  than  the  reverse;  by  giving  public  credit 
where  credit  is  due  and  taking  pains  to  expose  and  publish 
our  good  opinions  of  other  peoples;  by  cooperation  in  the 
multitude  of  causes  which  are  worid-wide  in  their  interest;  by 
urging  upon  our  countrymen  the  duty  of  international 
civility  and  kindly  consideration;  and  by  constant  pressure 
in  the  right  direction  in  a  multitude  of  ways  —  a  slow 
process,  but  one  which  counts  little  by  little  if  persisted  in. 

Each  separate  act  will  seem  of  no  effect  but  all  together 
they  will  establish  and  maintain  a  tendency  towards  the  goal 
of  international  knowledge  and  broad  human  sympathy. 
There  is  a  homely  English  saying,  **  Leg  over  leg  the  dog 
went  to  Dover.'*  That  states  the  method  of  our  true  prog- 
ress. We  cannot  arrive  at  our  goal  per  solium.  Not  by 
invoking  an  immediate  millenium,  but  by  the  accumulated 
effects  of  a  multitude  of  efforts,  each  insignificant  in  itself, 
but  steadily  and  persistently  continued,  we  must  win  our 
way  along  the  road  to  better  knowledge  and  kindliness 
among  the  peoples  of  the  earth  which  the  will  of  Alfred  Nobel 
describes  as  "  the  fraternity  of  nations." 

There  are  many  reasons  to  believe  that  progress  toward 
the  permanent  prevalence  of  peace  may  be  more  rapid  in  the 
futiu*e  than  in  the  past. 

Standards  of  conduct  are  changing  in  many  ways  unfavor- 
able to  war. 

Civilized  man  is  becoming  less  cruel.  Cruelty  to  men  and 
to  the  lower  animals  as  well,  which  would  have  passed  un- 
noticed a  century  ago,  now  shocks  the  sensibilities  and  is 
regarded  as  wicked  and  degrading.    The  severity  of  punish- 


NOBEL  PRIZE  ADDRESS  173 

ments  for  minor  offenses  which  formerly  prevailed  now  seems 
to  us  revolting.  The  torture  of  witnesses  or  of  criminals  has 
become  unthinkable.  Human  life  is  held  in  much  higher 
esteem  and  the  taking  of  it,  whether  in  private  quarrel  or  by 
judicial  procedure,  is  looked  upon  much  more  seriously  than 
it  was  formerly.  The  social  reaction  from  the  theories  of  the 
individualistic  economists  of  the  last  century  has  brought 
with  it  a  very  wide-spread  sense  that  men  have  some  sort  of 
responsibility  to  cause  affairs  to  be  so  ordered  in  civilized 
communities  that  their  fellow-men  have  a  chance  to  live. 
The  Hague  Conventions  to  regulate  the  conduct  of  war  and 
the  Geneva  Conventions  to  ameliorate  its  horrors  have  a 
significance  which  goes  beyond  their  professions.  They  mark 
the  changing  attitude  of  the  world  towards  the  subject  to 
which  they  relate;  and  they  introduce  into  the  business  of 
warfare  obligatory  considerations  of  humanity  and  respect 
for  human  rights  which  tend  to  destroy  the  spirit  upon  which 
alone  the  business  itself  can  continue.  No  one  can  read  those 
conventions  closely  without  being  struck  by  the  similarity 
of  the  process  of  regulation  and  limitation  which  they  exhibit 
with  theliistoric  process  by  which  private  war  was  ultimately 
regulated  out  of  existence  in  the  greater  part  of  the  civilized 
world.  The  growth  of  modem  constitutional  government 
compels  for  its  successful  practice  the  exercise  of  reason  and 
considerate  judgment  by  the  individual  citizens  who  con- 
stitute the  electorate.  The  qualities  thus  evoked  in  the  train- 
ing schools  of  domestic  affairs  are  the  qualities  which  make 
for  national  self-restraint  and  peace  in  international  affairs. 
History  is  being  rewritten,  and  the  progress  of  popular 
education  is  making  men  familiar  with  it;  and  as  the  world, 
which  worships  strength  and  has  most  applauded  military 
glory,  grows  in  knowledge,  the  great  commanding  figures 
rising  far  above  the  common  mass  of  mere  fighters,  the  men 
who  win  the  most  imperishable  fame  have  come  to  be  the 


174  INTERNATIONAL  SUBJECTS 

strong,  patient,  great-hearted  ones  like  Washington,  and 
Lincohi,  and  William  the  Silent,  and  Cavour,  whose  genius 
inspired  by  love  of  country  and  their  kind  urges  them  to 
build  up  and  not  to  destroy.  The  sweetest  incense  offered  to 
the  memory  of  the  soldier  is  not  to  the  brutal  qualities  of  war 
but  to  the  serene  courage  ennobled  by  sympathy  and  cour- 
tesy of  a  Bayard  or  a  Sidney.  The  hero-worshipper  is  grad- 
ually changing  from  the  savage  to  the  civilized  conception 
of  his  divinities.  Taken  all  in  all  the  clear  and  persistent 
tendencies  of  a  slowly  developing  civilization  justify  cheerful 
hope. 

We  may  well  turn  from  Tripoli  and  Mexico  and  the 
Balkans  with  the  apocryphal  exclamation  of  GalUeo,  "  And 
still  the  world  moves." 


THE  ETHICS  OF  THE  PANAMA  QUESTION 

AN  ADDRESS  BEFORE  THE  UNION  LEAGUE  CLUB  OF 
CHICAGO,  FEBRUARY  22,  1904 

As  Secretary  of  State,  Mr.  Root  was  exceedingly  anxious  to  secure  the  recog- 
nition by  Colombia  of  the  independence  of  Panama,  and  to  restore  the  friendly 
relations  which  had  existed  between  Colombia  and  the  United  States  but  which 
were  unfortunately  strained  to  the  breaking-point  by  the  revolution  in  Panama, 
and  the  recognition  of  its  independence  by  the  United  States.  He,  therefore, 
negotiated  a  tripartite  agreement,  consisting  of  three  separate  treaties,  each  of 
which  was  to  be  ratified  in  order  that  the  tripartite  agreement  should  be  binding 
upon  the  contracting  parties.  The  agreement  entitled  "The  Ship  Canal  Treaty", 
was  signed  at  Washington,  January  9,  1909. 

The  first  treaty  was  between  Colombia  and  the  United  States,  and  its  ratifica- 
tion was  advised  and  consented  to  by  the  Senate  on  February  24,  1909;  the  second 
treaty  was  between  Panama  and  the  United  States,  and  its  ratification  was  ad- 
vised and  consented  to  by  the  Senate  on  March  3,  1909;  the  third  treaty  was 
between  Colombia  and  Panama.  The  failure  of  Colombia  to  ratify  these  treaties, 
or  any  of  them,  prevented  the  adjustment  of  the  difficulty  between  Colombia  and 
the  United  States  during  Mr.  Root's  tenure  of  office. 

The  text  of  the  three  treaties  forming  the  tripartite  agreement  is  to  be  found  in 
"  Treaties,  Conventions,  International  Acts,  Protocols  and  Agreements  between 
the  United  States  and  Other  Powers  ",  compiled  by  Garfield  Charles,  vol.  3,  pp. 
235-247,  Washington,  1913. 

ON  November  3,  1903  the  people  of  Panama  revolted 
against  the  government  of  Colombia,  and  proclaimed 
their  independence.  On  the  thirteenth  of  November  the 
United  States  recognized  the  independence  of  the  republic 
of  Panama,  by  receiving  a  minister  from  the  new  Govern- 
ment, and  at  the  opening  of  the  regular  session  of  Congress 
in  December  the  President  asked  the  consent  of  the  Senate 
to  a  treaty  negotiated  between  our  Secretary  of  State,  Mr. 
Hay,  and  the  minister  of  Panama,  Mr.  Varilla,  providing  for 
the  construction  by  the  United  States  of  a  ship  canal  across 
the  Isthmus,  to  be  kept  by  us  open,  neutral,  and  free  upon 
equal  tenns  for  the  use  of  all  mankind.    After  long  and  ex- 

175 


176  INTERNATIONAL  SUBJECTS 

haustive  discussion  that  treaty  is  about  to  be  confirmed.  In 
the  meantime  the  Senate  by  a  great  majority  has  approved 
the  recognition  of  independence  by  confirming  the  nomina- 
tion of  William  I.  Buchanan  as  minister  from  the  United 
States  to  Panama.  The  revolutionary  leaders  have  sub- 
mitted their  action  to  the  people  of  Panama,  who  have,  by  a 
popular  vote,  given  it  their  unanimous  approval,  and  have 
elected  a  constitutional  convention,  framed  and  adopted  a 
constitution,  chosen  a  president  and  congress,  and  established 
a  repubHcan  government  according  to  the  forms  which  find 
their  model  in  the  constitutions  of  our  own  country.  In  the 
meantime,  also,  many  other  governments  have  followed  the 
United  States  in  receiving  the  new  republic  into  the  family  of 
nations.  On  the  eighteenth  of  November,  five  days  after  our 
recognition,  France  recognized  the  republic  of  Panama;  on 
the  twenty-second,  China;  on  the  twenty-seventh,  Austria; 
on  the  thirtieth,  Germany;  and  following  them  Denmark, 
Russia,  Sweden  and  Norway,  Belgium,  Nicaragua,  Peru, 
Cuba,  Great  Britain,  Italy,  Switzerland,  Costa  Rica,  Japan, 
Guatemala,  Netherlands,  Venezuela,  Portugal,  in  the  order 
named. 

The  independence  of  Panama,  the  grant  to  the  United 
States  of  the  right  to  construct  the  canal  across  the  Isthmus, 
and  the  assumption  by  the  United  States  of  the  duty  to  con- 
struct the  canal  and  to  maintain  it  for  the  equal  benefit  of 
mankind,  are  accomplished  facts.  Nothing  can  do  away 
with  them,  unless  it  be  some  future  war  of  conquest  waged 
against  the  liberties  of  Panama,  and  at  the  same  time  against 
the  rights  of  the  United  States  held  in  trust  for  the  commerce 
of  the  world. 

The  conduct  of  the  United  States  Government  in  recogniz- 
ing the  independence  of  Panama,  in  making  the  treaty,  and 
in  exercising  police  power  over  territory  traversed  by  the^ 
Panama  Railroad  and  the  partly-constructed  canal,  during 


ETHICS  OF  THE  PANAMA  QUESTION  177 

the  period  of  the  revolution,  has  been  severely  criticised 
by  some  of  our  own  citizens,  who  have  said,  in  substance, 
that  in  this  business  our  Government  has  violated  the 
rules  of  international  law,  has  been  grasping  and  unfair, 
and  has,  by  the  exercise  of  brute  force,  trampled  down  the 
rights  of  a  weaker  nation,  in  violation  of  those  principles  of 
justice  which  should  control  the  conduct  of  nations  as  of  men. 

In  considering  these  charges  we  may  well  thrust  aside  as 
carrying  no  weight  of  authority,  the  expressions  of  those  who 
while  they  condemn  the  conduct  of  our  Government,  are  in 
favor  of  the  treaty.  They  curiously  reverse  the  divine  rule, 
and  seem  to  hate  the  sinner  while  they  love  the  sin;  and  their 
adverse  criticism  may  fairly  be  ascribed  to  the  exigencies  of 
the  pending  presidential  campaign.  Some  of  them  may  be 
sincere,  but  upon  that  question  they  naturally  invite  the 
comment  made  upon  Lady  Macbeth,  that  "  she  might  be  a 
lady,  but  she  did  not  show  it  by  her  conduct." 

We  need  not  pay  very  much  heed,  either,  to  that  class  of 
temperamental  and  perennial  faultfinders  whom  we  have 
and  always  will  have  with  us,  as  an  incident  of  free  institu- 
tions, who  are  against  every  government  of  which  they  do 
not  personally  form  a  part,  and  in  whose  eyes  everything 
done  by  others  is  wrong.  This  class  of  our  citizens,  with 
slight  changes  in  personnel,  would  have  condemned  any 
course  of  conduct  by  our  Government,  whatever  it  was,  and 
their  condemnation  of  the  particular  course  followed  merely 
announces  their  existence. 

Nevertheless,  there  remain  good  and  sincere  men  and 
women  who  have  thought  our  course  to  be  wrong,  and  many 
others,  whose  character  and  patriotism  entitle  them  to  the 
highest  respect,  are  troubled  in  spirit.  They  would  be  glad 
to  be  sure  that  our  country  is  not  justly  chargeable  with  dis- 
honorable conduct.  May  the  time  never  come  when  such 
men  and  women  are  wanting,  or  are  constrained  to  remain 


178  INTERNATIONAL  SUBJECTS 

silent,  in  America.  May  the  time  never  come  when  the  con- 
science of  America  shall  cease  to  apply  the  rules  of  upright 
conduct  to  national  as  well  as  to  personal  life;  when  our 
Government  feels  absolved  from  the  obligation  to  answer  in 
that  forum  for  conformity  to  the  rules  of  right  or  when 
material  advantage  shall  be  held  to  excuse  injustice.  For  if 
such  a  time  ever  does  come  the  beginning  of  the  end  of  our 
free  institutions  will  have  come  also. 

I  wish  to  present  some  of  the  fundamental  facts  bearing 
upon  the  question  of  right  in  the  Panama  business,  although 
they  have  been  stated  already  better  than  I  can  state  them, 
with  the  hope  that  they  may  thus  reach  the  attention  of  some 
of  the  good  and  sincere  citizens  who  are  troubled  about  the 
matter. 

I  am  not  going  to  discuss  technical  rules  or  precedents  or 
questions  whether  what  was  done  should  have  been  done  a 
Httle  earlier  or  a  Httle  later,  but  the  broad  question  whether 
the  thing  we  have  done  was  just  and  fair. 

It  frequently  happens  in  affairs  of  government  that  most 
important  rights  are  created,  modified,  or  practically  de- 
stroyed by  gradual  processes,  and  by  the  indirect  effect  of 
events;  and  that  only  an  intimate  knowledge  of  the  process 
enables  one  to  realize  the  change  until  some  practical  ques- 
tion arises  which  requires  every  one  interested  to  study  the 
subject.  If  the  typical  New  Zealander,  ignorant  of  oiu*  poli- 
tical history,  were  to  read  our  Constitution  and  laws,  he 
would  suppose  that  a  presidential  elector  in  the  United 
States  is  entitled  to  exercise  freedom  of  choice  in  his  vote  for 
President,  and  he  would  be  quite  certain  that  we  were  guilty 
of  gross  injustice  in  the  treatment  which  we  should  certainly 
accord  to  an  elector  who  voted  for  any  one  but  the  candidate 
of  his  own  party.  In  forming  this  judgment,  he  would  be 
misled  by  the  form  and  appearance  of  things  which  he  found 
upon  the  statute  book,  and  would  misjudge  a  people  who 


ETHICS  OF  THE  PANAMA  QUESTION  179 

were  acting  in  accordance  with  the  substance  and  reality  of 
things  as  they  knew  them  to  be.  In  the  same  way,  they  are 
in  error  who  assume  that  the  relations  of  Colombia  to  the 
other  nations  of  the  earth  as  regards  the  Isthmus  of  Panama 
were,  in  truth,  of  unqualified  sovereignty  and  right  of  do- 
mestic control  according  to  her  own  will,  governed  and  pro- 
tected by  the  rules  of  international  law,  which  describe  the 
attributes  of  complete  sovereignty;  that  the  relations  of 
Colombia  to  the  people  of  Panama  were,  in  truth,  those  ap- 
pearing in  the  written  instrument  called  the  Constitution  of 
Colombia;  or  that  the  rights  and  duties  of  the  United 
States  in  regard  to  the  Isthmus  were  confined  to  the  simple 
duty  of  aiding  Colombia  to  maintain  her  control  over  the 
Isthmus,  and  the  simple  right  to  ask  from  Colombia  privi- 
leges which  that  country  was  entitled  to  grant  or  withhold 
at  her  own  pleasure.  . — . 

The  stupendous  fact  that  has  dominated  the  history  and 
must  control  the  future  of  the  Isthmus  of  Panama  is  the 
possibility  of  communication  between  the  two  oceans.  It  is 
possible  for  human  hands  to  pierce  the  narrow  forty  miles 
of  solid  earth  which  separate  the  Caribbean  from  the  Bay  of 
Panama,  to  realize  the  dreams  of  the  early  navigators, 
to  make  the  pathway  to  the  Orient  they  vainly  sought,  to 
relieve  commerce  from  the  toils  and  perils  of  its  nine  thou- 
sand miles  of  navigation  around  Cape  Horn  through  stormy 
seas  and  along  dangerous  coasts  with  its  constant  burden  of 
wasted  effort  and  shipwreck  and  loss  of  life,  and  to  push 
forward  by  a  mighty  impulse  that  intercommunication  be- 
tween the  distant  nations  of  the  earth  which  is  doing  away 
with  misunderstanding,  with  race  prejudice  and  bigotry,  with 
ignorance  of  human  rights  and  opportunity  for  oppression, 
and  making  all  the  world  kin. 

Throughout  the  centiiries  since  Philip  11  sat  upon  the 
throne  of  Spain,  merchants  and  statesmen  and  humanitarians 


180  INTERNATIONAL  SUBJECTS 

and  the  intelligent  masses  of  the  civilized  world  have  looked 
forward  to  this  consummation  with  just  anticipations  of 
benefit  to  mankind.  No  savage  tribes  who  happened  to  dwell 
upon  the  Isthmus  would  have  been  permitted  to  bar  this 
pathway  of  civilization.  By  the  universal  practice  and  con- 
sent of  mankind  they  would  have  been  swept  aside  without 
hesitation.  No  Spanish  sovereign  could,  by  discovery  or 
conquest  or  occupation,  preempt  for  himself  the  exclusive 
use  of  this  little  spot  upon  the  surface  of  the  earth  dedicated 
by  nature  to  the  use  of  all  mankind.  No  civil  society  or- 
ganized upon  the  ruins  of  Spanish  dominion  could  justly 
arrogate  to  itself  over  this  tract  of  land  sovereignty  unquaH- 
fied  by  the  world's  easement  and  all  the  rights  necessary  to 
make  that  easement  effective.  The  formal  rules  of  interna- 
tional law  are  but  declarations  of  what  is  just  and  right  in  the 
generality  of  cases.  But  where  the  application  of  such^ 
general  rule  would  impair  the  just  rights  or  imperil  the  exis- 
tence of  neighboring  states  or  would  unduly  threaten  the 
peace  of  a  continent  or  would  injuriously  affect  the  general 
interests  of  mankind,  it  has  always  been  the  practice  of 
civilized  nations  to  deny  the  application  of  the  formal  rule 
and  compel  conformity  to  the  principles  of  justice  upon  which 
all  rules  depend.  The  Danubian  principalities  and  Greece 
and  Crete,  and  Egypt,  the  passage  of  the  Dardanelles,  and 
the  neutralization  of  the  Black  Sea  are  familiar  examples  of 
limitations  in  derogation  of  those  general  rules  of  inter- 
national law  which  describe  the  sovereignty  of  nations. 

The  Monroe  Doctrine  itself ,  upon  which  we  stand  so  firmly^^ 
is  an  assertion  of  our  right  for  our  own  interest  to  interfere 
with  the  action  of  every  other  nation  in  those  parts  of  this 
hemisphere  where  others  are  sovereign  and  where  we  have  no  | 
sovereignty  or  claim  of  sovereignty,  and  to  say  if  you  do  ; 
thus  and  so,  even  by  the  consent  of  the  sovereign,  we  shall 
regard  it  as  an  unfriendly  act  because  it  will  affect  us  in- 


ETHICS  OF  THE  PANAMA  QUESTION  181 

juriously.    It  is  said  that  the  Monroe  Doctrine  is  not  a  rule  or\ 
international  law.    It  is  not  a  rule  at  all.    It  is  an  assertion  of 
a  right  under  the  universal  rule  that  all  sovereignty  is  held  ■ 
subject  to  limitations  in  its  exercise  arising  from  the  just 
interests  of  other  nations. 

By  the  rules  of  right  and  justice  universally  recognized 
among  men  and  which  are  the  law  of  nations,  the  sovereignty 
of  Colombia  over  the  Isthmus  of  Panama  was  qualified  and 
limited  by  the  right  of  the  other  civilized  nations  of  the 
earth  to  have  the  canal  constructed  across  the  Isthmus 
and  to  have  it  maintained  for  their  free  and  unobstructed 
passage. 

Colombia  and  her  predecessor,  New  Granada,  have  not 
failed  at  times  to  recognize  their  position.  In  1846  New 
Granada,  through  her  secretary  of  foreign  relations,  Mr.  Mal- 
larino,  appHed  to  the  Government  of  the  United  States  to 
enter  into  a  treaty  which  should  protect  that  country  against 
the  seizure  of  the  Isthmus  by  other  foreign  powers.  In 
effect,  she  acknowledged  the  right  of  way  and  asked  the 
United  States  to  become  the  trustee  of  that  right  which 
qualified  her  sovereignty,  to  maintain  it  for  the  equal  benefit 
of  all  nations,  and  at  the  same  time  to  protect  her  against  its 
exercise  by  them  in  such  a  manner  as  to  destroy  her  sov- 
ereignty altogether.  After  describing  acts  which  he  con- 
ceived to  be  undue  encroachments  by  Great  Britain  in 
South  America,  Mallarino  said: 

And  if  the  usurpation  of  the  Isthmus  in  its  channelizable  portion  should 
be  added  to  these  encroachments,  the  empire  of  American  commerce  in  its 
strictly  useful  or  mercantile  sense  would  fall  into  the  hands  of  the  only 
nation  that  the  United  States  can  consider  as  a  badly  disposed  rival.  It 
would  be  perfectly  superfluous  to  mention  the  political  consequences  that 
would  be  entailed  upon  America.  This  dominion  or  ascendancy  would  be 
equally  ruinous  to  the  commerce  of  the  United  States  and  to  the  nation- 
ality of  the  Spanish-American  republics,  most  direful  for  the  causes  of 
democracy  in  the  New  World,  and  a  constant  cause  of  distiu-bance  of  the 
public  j)eace  in  this  our  continent. 


182  INTERNATIONAL  SUBJECTS 

From  these  facts  and  general  considerations  may  be  inferred  the  urgent 
necessity  in  which  the  United  States  are  of  interposing  their  moral  in- 
fluence, and  even  their  material  strength,  between  the  weakness  of  the  new 
republics  and  the  ambitious  views  of  the  commercial  nations  of  Europe. 
.  .  .  This  end  is  simply  and  naturally  to  be  obtained  by  stipulating  in 
favor  of  the  United  States  a  total  rep)eal  of  the  differential  duties  as  a  com- 
pensation for  the  obligation  they  imposed  upjon  themselves  of  guaranteeing 
the  legitimate  and  complete  or  integral  possession  of  those  p>ortions  of 
territory  that  the  universal  mercantile  interests  require  to  be  free  and  open 
to  all  nations.  .  .  .  When  a  treaty  containing  such  a  stipulation  shall 
exist  between  New  Granada  and  the  United  States  and  it  could  be  com- 
pleted and  perfected  by  a  subsequent  and  supplementary  convention,  in 
which  the  transit  of  the  interoceanic  passage  should  be  arranged  and  its 
permanent  neutrality  confirmed,  half  the  plans  of  Great  Britain  would  of 
themselves  fail  and  it  would  no  longer  be  possible  for  her  to  encroach 
upon  the  Isthmus. 

He  said  he  assumed  that  the  United  States  would  in  the 
proposed  treaty  — 

guarantee  to  New  Granada  the  Isthmus  or  at  least  as  much  of  it  as  was 
required  for  the  construction  of  a  canal  or  railroad  upon  the  most  favorable 
route;  and  moreover  that  it  was  important  that  this  guaranty  should 
appear  in  the  treaty  as  a  condition  for  the  right  of  way  and  the  aboUtion 
of  the  discriminating  differential  duties,  otherwise  New  Granada  would  be 
obliged  to  grant  the  same  privileges  unconditionally  to  England. 

And  he  appealed  to  the  declaration  of  the  Monroe  Doctrine, 
reiterated  by  President  Polk  to  the  Congress  of  1845-46,  as 
the  basis  of  his  request. 

Upon  this  appeal,  the  treaty  of  December  12,  1846,  be- 
tween the  United  States  and  New  Granada,  was  made  and 
signed  in  behalf  of  Colombia  by  the  secretary,  Mallarino, 
whose  words  I  have  quoted.  The  thirty-fifth  article  of  the 
treaty  contained  the  following  provision: 

The  Government  of  New  Granada  guarantees  to  the  Government  of 
the  United  States  that  the  right  of  way  or  transit  across  the  Isthmus  of 
Panama  up>on  any  modes  of  communication  that  now  esdst,  or  that  may  be 
hereafter  constructed,  shall  be  open  and  free  to  the  Government  and  citi- 
zens of  the  United  States.  .  .  .  And  in  order  to  secure  to  themselves  the 
tranquil  and  constant  enjoyment  of  these  advantages,  and  as  an  especial 


ETHICS  OF  THE  PANAMA  QUESTION  183 

comjjensation  for  the  said  advantages  and  for  the  favors  they  have  ac- 
quired by  the  fourth,  fifth,  and  sixth  articles  of  this  treaty,  the  United 
States  guarantee  positively  and  efficaciously  to  New  Granada  by  the 
present  stipulation  the  perfect  neutrality  of  the  before-mentioned  Isthmus 
with  the  view  that  the  free  transit  from  the  one  to  the  other  sea  may  not  be 
interrupted  or  embarrassed  in  any  future  time  while  this  treaty  exists,  and 
in  consequence  the  United  States  also  guarantee  in  the  same  manner  the 
rights  of  sovereignty  and  proi)erty  which  New  Granada  has  and  possesses 
over  the  said  territory. 

In  transmitting  this  treaty  to  the  Senate  on  February  10, 
1847,  President  Polk  made  these  observations: 

1.  The  treaty  does  not  prop)ose  to  guarantee  a  territory  to  a  foreign 
nation  in  which  the  United  States  wiU  have  no  common  interest  with  that 
nation.  On  the  contrary,  we  are  more  deeply  and  directly  interested  in  the 
subject  of  this  guaranty  than  New  Granada  herself  or  any  other  country. 

2.  The  guaranty  does  not  extend  to  the  territories  of  New  Granada 
generally,  but  is  confined  to  the  single  province  of  the  Isthmus  of  Panama, 
where  we  shall  acquire,  by  the  treaty,  a  common  and  coextensive  right  of 
passage  with  herself. 

3.  It  will  constitute  no  alliance  for  any  political  object,  but  for  a  purely 
commercial  piupose  in  which  all  the  navigating  nations  of  the  world  have 
a  common  interest. 

You  will  perceive  that  in  this  transaction  New  Granada 
recognized  the  subordination  of  her  sovereignty  to  the  world's 
easement  of  passage  by  railroad  or  by  canal,  and,  apprehend- 
ing that  other  nations  might  seek  to  exercise  that  right 
through  the  destruction  of  her  sovereignty  and  the  appro- 
priation of  her  territory,  she  procured  the  United  States  to 
assume  the  responsibihty  of  protecting  her  against  such 
treatment.  The  United  States  assumed  that  burden  and  by 
way  of  consideration  — 

First.  The  United  States  received  an  express  grant  of  the 
right  of  way  which  President  Polk  described  as  constituting 
a  "  common  and  coextensive  right  of  passage  with  New 
Granada  herself,"  and  as  making  the  United  States  "  more 
deeply  and  directly  interested  in  the  subject  of  this  guaranty 
than  New  Granada  herself  or  any  other  country." 


184  INTERNATIONAL  SUBJECTS 

Second.  The  United  States  received  a  grant  of  power  and 
assumed  a  duty  herself  to  keep  the  transit  free  and  uninter- 
rupted and  unembarrassed,  and  to  keep  the  territory  of  the 
transit  neutral. 

The  duties  assumed  by  the  United  States  to  maintain 
neutrality  and  free  passage  were  undertaken  for  the  benefit 
of  all  the  world.  The  right  to  maintain  free  passage  was, 
however,  not  merely  for  the  general  benefit,  but  was  specifi- 
cally declared  to  be  "  in  order  to  secure  to  themselves  (the 
United  States)  the  tranquil  and  constant  enjoyment  "  of  the 
right  of  way.  The  United  States  assumed  the  burden  of 
protecting  New  Granada  against  an  unjust  exercise  of  the 
worid's  right  of  passage.  She  assumed  the  correlative  duty 
of  safeguarding  the  just  exercise  of  the  worid's  right  of  pas- 
sage, and  she  acquired  for  herself  a  specific  grant  of  the  right 
of  way  and  the  power  to  exercise  for  her  own  benefit  in  that 
territory  the  functions  of  sovereignty  which  were  necessary  for 
the  peaceable  enjoyment  of  the  interest  thus  acquired  by  her. 

Both  countries  have  agreed  in  the  construction  that  this 
treaty  imposed  upon  the  United  States  no  duty  toward  Col- 
ombia to  help  her  put  down  domestic  insiurection.  With 
that  form  of  assault  upon  the  sovereignty  of  Colombia  the 
United  States  has  had  no  concern,  except  when  it  tended 
to  interfere  with  free  transit,  and  then  the  action  of  the 
United  States  has  been,  not  in  the  exercise  of  a  duty  toward 
Colombia,  but  in  protection  of  her  own  rights. 

Throughout  the  half-century  past  since  the  treaty  was 
made,  the  United  States  has  been  faithful  to  her  obligations. 
The  distinct  announcement  of  her  protection  and  her  con- 
stantly increasing  power  have  been  an  adequate  barrier 
against  foreign  aggression  upon  the  Isthmus.  In  all  the  long 
and  monotonous  series  of  revolutions  and  rebellions  in  which 
Colombia  from  the  beginning  showed  herself  wholly  incap- 
able of  maintaining  order.  United  States  sailors  and  marines 


ETHICS  OF  THE  PANAMA  QUESTION  185 

have  policed  the  railroad,  its  terminal  cities  and  its  harbors  — 
sometimes  by  Colombia's  request  and  sometimes  without 
it  —  prohibiting  action  sometimes  by  the  forces  of  the  party 
in  power  and  sometimes  by  the  forces  of  the  party  out  of 
power,  but  always  enforcing  peace  upon  the  line  of  transit. 
In  a  long  and  unbroken  series  of  formal  binding  official 
declarations  by  nearly  every  administration  for  more  than 
half  a  century,  we  have  committed  our  country  as  a  matter 
of  traditional  policy  to  the  execution  of  the  trust  to  protect 
and  control  the  passage  of  the  Isthmus  for  the  equal  uses  of 
all  nations. 

It  will  be  observed  that  one  effect  of  the  treaty  of  1846  was 
that  foreign  powers  were  to  be  excluded  from  the  opportunity 
to  construct  the  canal  themselves.  It  followed  from  this 
that  if  private  enterprise  should  fail  to  build  the  canal,  the 
United  States  assumed  the  obligation  to  build  it  herself.  We 
could  not  play  dog  in  the  manger  on  the  Isthmus.  We  could 
not  refuse  to  permit  the  work  to  be  done  by  any  one  else  com- 
petent to  do  it  and  refuse  the  burden  ourselves.  The  obliga- 
tion of  the  United  States  to  build  the  canal  and  the  obligation 
of  Colombia  to  permit  her  to  build  it,  both  followed  neces- 
sarily from  the  relations  and  obligations  assumed  by  them  in 
the  treaty  of  1846. 

Private  enterprise  has  failed  to  build  the  canal.  The  great 
French  company  organized  by  DeLesseps,  after  spending  and 
wasting  an  incredible  amount  of  treasure  and  after  the 
sacrifice  of  thousands  of  Hves,  has  abandoned  hope  of  com- 
pleting the  imdertaking.  No  private  company  again  will 
grapple  with  the  colossal  enterprise.  Other  nations  are  ex- 
cluded from  the  attempt  by  the  force  of  our  agreement  with 
Colombia.    If  the  canal  is  to  be  built,  we  must  build  it. 

The  United  States  has  answered  to  that  obligation.  Again 
upon  the  request  of  Colombia,  she  entered  upon  the  negotia- 
tion of  the  further  treaty  described  by  the  Granadian  secre- 


186  INTERNATIONAL  SUBJECTS 

tary,  Mallarino,  in  1846  as  "  a  subsequent  and  supplementary 
convention,  in  which  the  transit  of  the  interoceanic  passage 
should  be  arranged  and  its  permanent  neutrality  confirmed." 

Colombia  stood  to  profit  more  by  the  building  of  that  canal 
than  any  other  nation  upon  earth.  Her  territory  stretching 
across  the  northwestern  end  of  South  America  was  without 
internal  communication  or  unity.  Her  principal  towns  upon 
her  Atlantic  and  her  Pacific  coasts  were  separated  by  ranges 
of  lofty  mountains  not  traversed  by  any  railroad,  and  for  the 
most  part  without  roads  of  any  kind.  The  building  of  a  canal 
would,  for  the  first  time,  establish  practical  and  easy  com- 
munication between  her  different  provinces.  The  work  of 
construction  would  bring  enormous  sums  to  be  expended  in 
her  territory,  and  the  operation  of  the  canal  would  set  Colom- 
bia upon  a  great  highway  of  the  world's  commerce  with 
incalculable  opportunities  for  development  and  wealth.  She 
had  acknowledged  the  world's  right  to  the  canal.  She  had 
specifically  granted  the  right  of  way  to  the  United  States. 
She  had  induced  the  United  States  to  assimie  the  moral 
obhgation  for  its  construction  by  excluding  all  other  nations 
from  the  Isthmus  for  her  protection.  When  she  came  to 
settle  the  terms  of  this  "  supplementary  convention,"  the 
detailed  arrangements  under  which  this  enormous  benefit 
might  be  conferred  upon  mankind,  and  especially  upon 
herself,  she  demanded  to  be  paid. 

Reluctantly,  and  with  a  sense  that  it  was  an  unjust  exac- 
tion, the  United  States  agreed  to  pay  ten  million  dollars 
down  and  two  hundred  and  fifty  thousand  dollars  per  annum 
in  perpetuity  —  substantially  the  entire  amount  exacted  by 
Colombia.  We  were  not  going  into  the  enterprise  to  make 
money,  but  for  the  common  good.  We  did  not  expect  the 
revenues  of  the  canal  to  repay  its  cost,  or  to  receive  any 
benefit  from  it,  except  that  which  Colombia  would  share  to  a 
higher  degree  than  ourselves.    Against  the  hundreds  of  mil- 


ETHICS  OF  THE  PANAMA  QUESTION  187 

lions  which  we  were  obHgating  ourselves  to  expend,  Colombia 
was  expected  only  to  permit  the  use  of  a  small  tract  of  other- 
wise worthless  land  already,  in  substance,  devoted  to  that 
purpose.  We  were  not  seeking  a  privilege  which  Colombia^ 
was  entitled  to  withhold  but  settling  the  method  in  which  the 
acknowledged  right  of  mankind  over  a  portion  of  her  soil 
should  be  exercised,  with  due  regard  to  her  special  interests,. 
It  was  not  just  that  we  should  pay  anything,  but  it  was  better 
to  pay  than  to  coerce  a  weaker  nation.  The  treaty  was  rati- 
fied by  the  Senate,  and  forwarded  to  Bogota.  At  the  same 
time  we  arranged  that  upon  the  final  ratification  of  the  treaty 
we  should  pay  to  the  Panama  Canal  Company,  forty  million 
dollars,  the  entire  appraised  value  of  its  work  upon  the  canal, 
in  which  it  had  expended  nearly  two  hundred  million  dollars. 
The  concessions  made  in  the  treaty  to  the  Government  of 
Colombia,  however,  seemed  merely  to  inspire  in  that  Govern- 
ment a  belief  that  there  was  no  limit  to  the  exactions  which 
they  could  successfully  impose.  They  demanded  a  further 
ten  million  dollars  from  the  Panama  Canal  Company,  and 
upon  its  refusal,  they  rejected  the  treaty. 
_^This  rejection  was  a  substantial  refusal  to  permit  the  canal 
to  be  built.  It  appears  that  the  refusal  contemplated  not 
merely  further  exactions  fr«m  us  but  the  spoliation  of  the 
canal  company.  That  company's  current  franchise  was 
limited  by  its  terms  t«  October  31,  1904.  There  was  an  ex- 
tension for  six  years  granted  by  the  President  and  for  which 
the  company  had  paid  five  milHon  francs.  These  patriots 
proposed  to  declare  the  extension  void  and  the  franchise 
ended  and  to  confiscate  the  forty  million  dollars  worth  of 
property  of  the  company  and  take  from  the  United  States 
for  themselves,  in  payment  for  it,  the  forty  million  dollars  we 
had  agreed  to  pay  the  company.  The  report  of  the  com- 
mittee on  which  the  Colombian  senate  acted,  contained  the 
following: 


188  INTERNATIONAL  SUBJECTS 

By  the  thirty-first  of  October  of  next  year  —  that  is  to  say,  when  the 
next  congress  shall  have  met  in  ordinary  session  —  the  extension  will  have 
expired,  and  every  privilege  with  it.  In  that  case,  the  republic  will  be- 
come the  possessor  and  owner,  without  any  need  of  a  previous  judicial 
decision  and  without  any  indemnity,  of  the  canal  itself,  and  of  the  adjuncts 
that  belong  to  it,  according  to  the  contracts  of  1878  and  1900. 

When  that  time  arrives  the  repubUc,  without  any  imj>ediment,  will  be 
able  to  contract  and  will  be  in  more  clear,  more  definite,  and  more  advan- 
tageous possession,  both  legally  and  materially.  The  authorizations  which 
would  then  be  given  by  the  next  congress  would  be  very  different  from 
those  that  would  be  gfven  by  the  present  one. 

By  becoming  a  party  to  this  scheme,  we  might  indeed  have 
looked  forward  to  the  time  when  the  appetite  of  Colombia 
being  satisfied  at  the  expense  of  the  unfortunate  stockholders 
of  the  French  Company,  we  could  proceed  with  the  work; 
but  such  a  course  was  too  repugnant  to  the  sense  of  justice 
that  obtains  in  every  civilized  community  to  be  for  a  moment 
contemplated.  We  had  yielded  to  the  last  point,  beyond 
reason  and  justice,  in  agreeing  to  pay  for  a  privilege  to  which 
we  were  already  entitled  and  we  could  not,  with  self-respect, 
submit  to  be  mulcted  further.  We  could  negotiate  no  further. 
Rejection  of  the  treaty  was  practically  a  veto  of  the  canal. 
Every  effort  was  made  to  bring  Colombia  to  a  realization  of 
what  it  was  that  she  was  doing;  the  effort  was  in  vain,  and  on 
the  thirty-first  of  October,  when  the  Colombian  Congress 
adjourned,  the  inchoate  treaty  had  expired  by  limitation. 

The  questions  presented  to  the  United  States  by  this 
rejection  were  of  the  gravest  importance.  Lewis  Cass, 
Secretary  of  State,  said  in  1858: 

The  progress  of  events  has  rendered  the  interoceanic  route  across  the 
narrow  portion  of  Central  America  vastly  imj)ortant  to  the  commercial 
world,  and  especially  to  the  United  States,  whose  possessions  extend  along 
the  Atlantic  and  the  Pacific  coasts,  and  demand  the  speediest  and  easiest 
modes  of  communication.  While  the  rights  of  sovereignty  of  the  States 
occupying  this  region  should  always  be  respected,  we  shall  exjiect  that 
these  rights  be  exercised  in  a  spirit  befitting  the  occasion  and  the  wants  and 
circumstances  that  have  arisen.    Sovereignty  has  its  duties  as  well  as  its 


ETHICS  OF  THE  PANAMA  QUESTION  189 

rights,  and  none  of  these  local  governments,  even  if  administered  with 
more  regard  to  the  just  demands  of  other  nations  than  they  have  been, 
would  be  permitted  in  a  spirit  of  Eastern  isolation  to  close  the  gates  of 
intercourse  on  the  great  highways  of  the  world  and  justify  the  act  by  the 
pretention  that  these  avenues  of  trade  and  travel  belong  to  them  and  that 
they  choose  to  shut  them,  or  what  is  almost  equivalent,  to  encumber 
them  with  such  unjust  relations  as  would  prevent  their  general  use. 

The  time  had  apparently  come  to  stand  upon  this  declara- 
tion or  abandon  the  canal.  The  question  was,  should  we  sub- 
mit to  be  deprived  of  the  canal  at  the  will  of  Colombia,  whose 
sovereignty  was  justly  subject  to  the  world's  right  of  passage? 
Should  we  continue  to  maintain  upon  the  Isthmus  that 
feeble  sovereignty  whose  existence  had  depended  for  half  a 
century  upon  our  protection,  in  order  that  it  might  still  bar 
the  way  of  the  world's  progress  and  the  exercise  of  our  just 
rights  ?  Should  we  prepare  to  protect  that  sovereignty  in  its 
scheme  of  spoliation,  against  the  justly  indignant  protests  of 
France  surely  coming  to  the  support  of  the  stockholders  of 
the  French  Canal  Company  ?  Or,  should  we  say  to  Colom- 
bia, you  have  no  right  to  prevent  the  construction  of  this 
canal;  you  are  bound  to  consent  to  it  upon  reasonable 
terms;  by  your  request  we  have  assumed  a  position  in  which 
we  are  bound  to  build  it  for  the  use  of  the  nations  and 
in  which  we  are  entitled  to  build  it  for  our  own  interest; 
and  we  shall  now  proceed  to  build  it  with  due  regard  for 
your  interests,  whether  you  agree  upon  the  terms  and  con- 
ditions or  not. 

I  think  that  Secretary  Cass  answered  the  question  forty- 
five  years  ago.  In  Europe  a  concert  of  the  Powers  would 
have  made  short  work  of  the  question.  In  Central  America 
they  would  have  made  short  work  of  it  but  for  the  Monroe 
Doctrine,  to  which  New  Granada  appealed,  and  the  pro- 
tection which  we  guaranteed  to  her  under  the  treaty  of 
1846.  By  the  assertion  of  that  doctrine  and  the  engage- 
ments of    that    treaty  we   took   the    responsibility  upon 


190  INTERNATIONAL  SUBJECTS 

ourselves  alone,  to  do  for  civilization  what  otherwise  all  the 
maritime  powers  would  have  united  in  requiring;  it  was 
for  us  alone  to  act;  and  I  have  no  question  that  our  right 
and  duty  were  to  build  the  canal,  with  or  without  the  consent 
of  Colombia. 

These  were  the  conditions  existing  when  the  revolution  of 
the  third  of  November  happened.  To  an  understanding  of 
that  revolution  a  knowledge  of  the  character  and  history 
of  Panama  is  essential.  Some  uninformed  persons  have  as- 
sumed that  it  was  merely  a  number  of  individual  citizens  of 
Colombia  living  in  the  neighborhood  ol  the  proposed  canal 
who  combined  to  take  possession  of  that  part  of  Colombian 
territory  and  set  up  a  government  of  their  own.  No  con- 
ception could  be  more  inadequate.  The  sovereign  state  of 
Panama  was  an  organized  civil  society  possessed  of  a  terri- 
tory extending  over  four  hundred  miles  in  length  from  Costa 
Rica  on  the  west  to  the  mainland  of  South  America  on  the 
east.  It  had  a  population  of  over  three  hundred  thousand 
the  greater  part  of  whom  lived  in  the  western  part  of  the 
country,  toward  Costa  Rica,  and  farthest  removed  from 
South  America.  Between  the  inhabited  part  of  this  territory 
and  the  inhabited  part  of  Colombia,  stretched  hundreds  of 
miles  of  tropical  forest  so  dense  as  to  be  impassable  by  the 
ordinary  traveler,  so  that  there  was  no  communication  by 
land  between  the  two  countries.  The  only  intercourse  was 
by  long  sea  voyages,  as  if  Panama  were  a  distant  island;  and 
the  journey  from  the  Isthmus  to  the  capital  of  Colombia  was 
longer  in  time  than  from  the  Isthmus  to  Washington. 

Panama  was  not  an  original  part  of  Colombia,  or  of  New 
Granada,  but  obtained  its  own  independence  from  Spain  and 
established  its  own  government  in  November,  1821,  and 
thereafter  voluntarily  entered  the  Granadian  Confederation. 
When  that  confederation  was  broken  up  into  Venezuela, 
Ecuador,  and  New  Granada  in  1832,  Panama  remained  with 


ETHICS  OF  THE  PANAMA  QUESTION  191 

New  Granada,  and  so  continued  until  the  year  1840,  when 
she  again  became  independent  and  'remained  a  separate 
sovereignty  until  1842.  She  then  returned  to  New  Granada 
and  remained  a  part  of  that  country  until  1855,  when  by 
amendment  to  the  constitution  these  provisions  went  into 
effect: 

Article  1.  The  territory  which  comprises  the  provinces  of  the  Isthmus 
of  Panama,  to  wit,  Panama,  Ezuero,  Veraguas,  and  Chiriqui,  form  a 
sovereign,  federal  integral  part  of  New  Granada  under  the  name  of  the 
State  of  Panama. 

Art,  3.  The  State  of  Panama  is  subject  to  that  of  New  Granada  in  the 
matters  which  are  here  mentioned: 

1.  All  matters  concerning  foreign  relations; 

2.  Organization  and  service  of  the  regular  army  and  of  the  marines; 

3.  Federal  finances; 

4.  Naturalization  of  foreigners; 

5.  Official  weights,  balances,  and  measures. 

Art.  4.  In  all  other  matters  of  legislation  and  administration,  the  State 
of  Panama  shall  legislate  freely  in  the  manner  it  considers  proper  in  accord- 
ance with  the  niles  of  practice  of  its  own  constitution. 

Since  that  time,  now  nearly  fifty  years  ago,  the  state  of 
Panama  has  never  voluntarily  surrendered  her  sovereignty. 
In  1858,  in  1860  and  1861,  new  confederations  were  formed 
in  which  Panama  became  a  contracting  party.  In  1863  a 
new  constitution  was  formed,  the  first  two  articles  of  which 
were  as  follows : 

Article  1.  The  sovereign  States  of  Antioquia,  Bolivar,  Boyaca,  Cauca, 
Cundinamarca,  Magdalena,  Panama,  Santander,  and  Tolima,  created, 
respectively,  by  the  acts  of  February  27,  1855,  June  11,  1856,  May  13, 
1857,  June  15  of  the  same  year,  April  12,  1861,  and  September  3  of  the 
same  year,  unite  and  confederate  forever,  consulting  their  external  security 
and  reciprocal  aid,  and  form  a  free,  sovereign,  and  independent  nation 
imder  the  name  of  the  "  United  States  of  Colombia." 

Art.  2.  The  said  States  engage  to  aid  and  defend  themselves  mutually 
against  all  violence  that  may  injure  the  sovereignty  of  the  Union  or  that  of 
the  States. 

This  constitution  undertook  to  distribute  general  and  local 
powers  between  the  federal  and  the  state  governments  upon 


192  INTERNATIONAL  SUBJECTS 

the  principles  followed  in  the  Constitution  of  the  United 

States.    But  it  provided: 

Abt.  25.  Every  act  of  the  National  Congress  or  of  the  executive  power 
of  the  United  States,  which  shall  violate  the  rights  warranted  in  the 
fifteenth  article,  or  attack  the  sovereignty  of  the  States,  shall  be  liable  to 
abrogation  by  the  vote  of  the  latter  expressed  by  the  majority  of  their 
respective  legislatures. 

And  it  provided  that  it  could  be  amended  only  in  the  fol- 
lowing manner: 

1.  That  the  amendments  be  solicited  by  the  majority  of  the  legislatures 
of  the  States; 

2.  That  the  amendments  be  discussed  and  approved  in  both  houses, 
according  to  what  has  been  established  for  the  enactment  of  laws;  and 

3.  That  the  amendments  be  ratified  by  the  imanimous  votes  of  the 
senate  of  plenipotentiaries,  each  State  having  one  vote. 

It  may  also  be  amended  by  a  convention  called  therefor  by  the  Congress 
on  the  application  of  the  whole  of  the  legislatures  of  the  States  and  com- 
posed of  an  equal  number  of  deputies  from  each  State. 

Under  this  constitution  Mr.  King,  the  American  minister 

at  Bogota,  reported  to  the  Secretary  of  State  at  Washington : 

The  States  comprising  the  Union  were  vested  with  absolute  and  un- 
qualified sovereignty.  From  them  emanated  all  authority,  and  without 
their  assent  none  could  be  exercised  by  the  Federal  fimctionaries  of  the 
nation. 

Under  that  constitution  the  sovereign  state  of  Panama 
lived  in  confederation  with  the  other  states  of  Colombia  for 
twenty-three  years,  untU  the  year  1886.  She  never  legally 
lost  her  rights  under  that  constitution,  but  she  was  deprived 
of  them  in  fact  by  force  in  the  manner  which  I  shall  now 
describe. 

In  the  year  1885  Rafael  Nunez,  having  been  elected 
President  of  the  Confederation  of  Colombia  under  the  Con- 
stitution of  1863,  undertook  to  govern  in  disregard  of  con- 
stitutional limitations,  and  was  resisted  in  many  parts  of 
Colombia,  including  Panama.  The  resistance  was  over- 
come, and  when  that  was  accomplished  Nunez  declared  "  the 


ETHICS  OF  THE  PANAMA  QUESTION  193 

constitution  of  1863  no  longer  exists."  He  put  Panama  under 
martial  law,  not  during  the  civil  war,  but  after  its  close,  and 
appointed  a  governor  of  the  state.  He  also  appointed  gover- 
nors for  the  other  states  in  the  confederation.  He  then 
directed  these  governors  to  appoint  delegates  to  a  constitu- 
tional convention;  and  the  delegates  thus  appointed  framed 
what  is  known  as  the  constitution  of  1886.  The  two  delegates 
appointed  to  represent  Panama  in  this  convention  were 
residents  of  Bogota.  Neither  of  them  had  ever  resided  in 
Panama,  and  one  of  them  never  had  set  foot  in  Panama.  The 
pretended  constitution  thus  framed  by  the  appointees  of 
Nunez  was  declared  to  be  adopted  without  compliance  with 
a  smgle  one  of  the  requisites  prescribed  by  the  constitution  of 
1863  for  its  amendment.  It  robbed  the  people  of  Panama 
of  every  vestige  of  self-government.  It  gave  them  a  governor 
to  be  appointed  by  the  president  at  Bogota,  and  he,  in  turn, 
appointed  all  the  administrative  officers  of  the  department. 
It  left  to  the  other  states  their  legislatures,  but  it  took  away 
from  Panama  its  legislature  and  subjected  the  Isthmus 
directly  in  all  things  to  the  legislative  authority  of  the  Con- 
gress at  Bogota.  It  provided  that  the  president  might  at  any 
time,  in  case  of  civil  commotion,  declare  the  public  order  to 
be  disturbed,  and  that  he  should  thereupon  have  authority 
to  issue  decrees  having  the  force  of  legislative  enactments. 
It  gave  him  absolute  power  over  the  press  and  power  to 
imprison  or  expatriate  any  citizen  at  will.  It  took  away  the 
property,  the  powers,  the  corporate  existence,  the  civU 
organization  of  the  state,  and  placed  the  property  and  the 
Hves  of  its  people  absolutely  under  the  authority  and  power 
of  a  single  dictator  in  a  distant  capital  with  which  there  was 
no  communication  by  land,  and  which  it  required  longer  to 
reach  than  it  did  to  reach  the  city  of  Washington.  This 
pretended  constitution  was  never  submitted  to  the  people 
of  Panama  for  their  approval  or  rejection.    It  was  never 


194  INTERNATIONAL  SUBJECTS 

consented  to  by  them.  Our  minister  at  Bogota,  Mr.  King, 
closed  his  dispatch  describing  the  new  instrmnent  with  these 
words: 

No  generous  mind  can  contemplate  the  disasters  which  have  befallen 
this  people,  or  meditate  on  the  ills  that  may  flow  from  their  reckless  experi- 
ment of  violent  political  change,  without  feeling  a  deep  sorrow  for  the 
pains  endured  by  a  weak  and  long-suflFering  race,  who  mourn  the  destruc- 
tion of  their  chartered  rights  as  the  loss  of  a  cherished  freedom  that  must  be 
recovered  at  the  cost  of  every  peril. 

In  an  address  made  by  President  Nunez  to  this  convention 

of  his  own  appointees  he  indicated  clearly  the  way  in  which 

he  proposed  to  make  the  new  constitution  effective  in 

Panama.    He  said: 

To  what  has  been  stated  is  added  the  necessity  of  maintaining  for  some 
time  a  strong  army  which  shall  serve  as  a  material  support  to  the  acclima- 
tization of  peace  which  cannot  be  produced  instantaneously  by  a  system  of 
government  little  in  heirmony  with  the  defective  habits  acquired  in  so 
many  years  of  error.  The  state  of  Panama  alone  requires  a  large  and  well- 
paid  garrison,  in  order  that  acts  may  not  again  occur  endangering  our 
sovereignty;  without  such  precaution  excluding  the  most  certain  one, 
which  is  the  prudent  cultivation  of  oiu-  relations  with  the  North  American 
Government,  which  has  just  given  us  clear  evidence  of  its  good  faith. 

The  evidence  of  good  faith  to  which  he  referred  was  that  our 
armed  forces  had  just  turned  the  Isthmus  over  from  the  con- 
trol of  the  troops  of  Panama  to  the  control  of  the  troops  of 
Nunez;  and  the  meaning  was  that  he  intended  to  hold  the 
people  of  Panama  subject  by  force  of  arms  and  the  aid  of 
the  United  States. 

In  May,  1886,  our  consul  at  Panama  reported  to  the  State 
Department: 

The  people  of  the  Isthmus  are  ground  down  by  excessive  taxation,  and 
they  fear  to  acquire  property  lest  they  shall  not  only  be  robbed  by  the  tax 
gatherers  but  also  imprisoned  to  cloak  the  robbery  imder  a  false  charge. 
At  the  present  time  the  revenue  derived  from  the  cities  of  Panama  and 
Colon  and  intermediary  villages  is  at  the  rate  of  $1,000,000  a  year.  Not 
one  tenth  of  this  revenue  is  spent  for  the  benefit  of  the  people.  It  is  used 
to  keep  the  forces  to  keep  them  in  subjection. 


ETHICS  OF  THE  PANAMA  QUESTION  195 

On  December  24, 1886,  four  months  after  the  promulgation 

of  the  constitution,  he  reported: 

Three  fourths  of  the  people  of  this  Isthmus  desire  separation  and 
the  independence  of  the  extinguished  state  of  Panama.  They  feel  but 
little  more  affection  for  the  Governor  at  Panama  than  the  Poles  did 
forty  years  ago  for  their  masters  at  St.  Petersburg.  They  would  revolt 
if  they  could  get  arms  and  if  they  felt  that  the  United  States  would  not 
interfere. 

A  signed  article  published  in  December  last  in  the  news- 
paper El  Relator  of  Bogota  sums  up  the  story  of  oppression 
and  spoliation  under  which  the  people  of  Panama  have 
suffered  during  these  recent  years.  The  facts  which  the 
writer  states  appear  also  spread  at  large  in  numerous  reports 
upon  the  files  of  our  State  Department.    He  says: 

When  the  Isthmus  in  1821  had  sealed  its  independence  and  had  in- 
corporated itself  spontaneously  to  great  Colombia,  undoubtedly  it  had  the 
conviction  that  we  would  not  annul  its  rights  and  its  liberty  as  a  nation; 
it  thought  that  we  would  always  respect  the  integrity  of  its  own  govern- 
ment. Whether  we  have  betrayed  or  not  the  confidence  that  the  Isth- 
mians had  in  our  country,  the  history  of  the  last  twenty  years  and  the 
work  of  inequity  and  spoiling  realized  in  Panama  will  answer. 

We  have  converted  the  lords  and  masters  of  that  territory  into  pariahs 
of  their  native  soils.  We  have  cut  oflF  their  rights  and  suppressed  all  their 
liberties  unexpectedly.  We  have  robbed  them  of  the  most  precious 
faculty  of  a  free  people  —  that  of  electing  their  mandataries;  their 
legislators,  their  judges. 

We  have  restricted  for  them  the  right  of  suffrage;  we  have  falsified  the 
count  of  votes;  we  have  made  prevalent  over  the  p>opular  will  the  will  of  a 
mercenary  soldiery  and  that  of  a  series  of  employees  entirely  strange  to  the 
interests  of  the  dejjartment;  we  have  taken  away  from  them  the  right  of 
law-making,  and  as  a  compensation  we  have  put  them  xmder  the  iron  yoke 
of  exceptional  laws;  state,  provinces,  and  municipaUties  have  lost  entirely 
the  autonomy  which  they  were  enjoying  formerly.  .  .  . 

In  towns  of  a  cosmopolitan  character  on  the  Isthmus,  we  did  not  found 
any  national  schools  where  children  could  learn  our  religion,  our  language, 
our  history,  and  how  to  love  their  country.  In  the  face  of  the  world,  we 
have  punished  with  imprisonment,  with  expulsion,  with  fines,  and  whip>- 
pings  the  writers  for  the  innocent  expression  of  their  thought.  From 
December,  1884,  to  October,  1903,  the  presidents,  governors,  secretaries, 
prefects,  mayors,  chiefs  of  pyoUce,  military  chiefs,  officials,  and  soldiers, 


196  INTERNATIONAL  SUBJECTS 

inspectors  of  police,  the  police  itself,  captains  and  surgeons  of  harbors, 
magistrates,  judges  of  all  descriptions,  state  attorneys  —  everybody  came 
from  the  high  plains  of  the  Andes  and  from  cfther  parts  of  the  republic  to 
impose  on  the  Isthmus  the  will,  the  law,  or  the  whims  of  the  more  power- 
ful, to  sell  justice  or  speculate  with  the  treasiu-y.  This  series  of  employees, 
similar  to  an  octopus  with  its  multiple  arms,  was  sucking  the  blood  of  an 
oppressed  people  and  was  devouring  what  only  the  Panamans  had  right  to 
devour.  We  have  made  of  the  Isthmus  a  real  miUtary  province,  and  when 
this  nation  of  three  hundred  and  fifty  thousand  souls  had  men  of  conti- 
nental reputation  like  Justo  Arosemana;  legislators  of  the  first  order  and 
of  an  irresistible  jjopularity  like  Pablo  Arosemana  and  like  Gil  Colunje; 
men  of  talent  like  Ardila;  brilliant  diplomats  like  Hurtado;  and  scientific 
celebrities  of  European  reputation  like  Sosa,  we  leave  them  aside,  we 
relegate  them  in  contempt  and  in  forgetfulness  instead  of  putting  them  at 
the  head  of  the  Isthmus,  in  order  to  quench  the  thirst  of  equity  and  justice 
and  satisfy  the  legitimate  aspirations  of  all  the  Panamans.  Such  a  way  of 
proceeding  has  wounded  the  pride,  the  dignity,  and  the  patriotism  of  all 
the  intellectual  people  of  the  Isthmus,  and  has  provoked  and  developed  the 
hatred  and  the  anger  of  the  popular  mass. 

The  people  of  Panama  fought  to  exhaustion  in  1885  to 
prevent  the  loss  of  their  liberty  and  they  were  defeated 
through  the  action  of  the  naval  forces  of  the  United  States. 
Three  times  since  then  they  have  risen  in  rebeUion  against 
their  oppressors. 

In  1895  they  arose  and  were  suppressed  by  force;  in  1899 
they  arose  again  and  for  three  years  maintained  a  war  for 
liberation,  which  ended  in  1902  through  the  interposition  of 
the  United  States  by  armed  force.  The  rising  of  November, 
1903,  was  the  fourth  attempt  of  this  people  to  regain  the 
rights  of  which  they  had  been  deprived  by  the  usurpation  of 
Nunez.  The  rejection  of  the  canal  treaty  by  the  Bogota 
Congress  was  the  final  and  overwhelming  injury  to  the  in- 
terests of  Panama;  the  conclusive  evidence  of  indifference 
to  her  welfare  and  disregard  of  her  wishes;  and  it  also  created 
the  opportunity  for  success  in  her  persistent  purpose  to  regain 
civil  liberty;  for  it  was  plain  that  under  the  strained  relations 
created  by  that  rejection,  the  United  States  naturally  would 


ETHICS  OF  THE  PANAMA  QUESTION  197 

not  exercise  her  authority  again  upon  the  Isthmus,  as  she 
had  exercised  it  before,  to  aid  the  troops  of  Colombia.  She 
was  under  no  obHgation  to  do  so,  and  she  could  not  do  so 
without  aiding  in  the  denial  of  her  own  rights  and  the  destruc- 
tion of  her  own  interests.  Upon  that  the  people  of  Panama 
relied  in  their  last  attempt,  and  they  relied  upon  it  with 
reason. 

In  the  meantime  there  had  been  a  curious  grafting  of 
usurpation  upon  usurpation  at  Bogota.  In  1898  M.  A.  San- 
clamente  was  elected  president,  and  J.  M.  Maroquin,  vice- 
president,  of  the  republic  of  Colombia.  It  is  true  that  there 
was  no  freedom  of  election.  Our  minister  had  reported  of  a 
preceding  election:  "  None  but  the  soldiers,  police,  and  em- 
ployees of  the  Government  voted,  thus  making  the  victory 
of  the  Government  complete";  but  there  was  a  form  of 
election,  and  Sanclamente  became  the  only  president  there 
was,  and  Maroquin  the  vice-president.  Article  twenty-four 
of  the  constitution  of  1886  provided: 

The  vice-president  of  the  republic  shall  p>erforin  the  duties  of  the  exec- 
utive oflSce  during  the  tenip)orary  absence  of  the  president.  In  case  of  the 
permanent  absence  of  the  president,  the  vice-president  shall  occupy  the 
oflBce  of  the  president  diu-ing  the  balance  of  the  time  for  which  he  was 
elected. 

On  July  31, 1900,  the  vice-president,  Maroquin,  executed 
a  coup  (Tetat  by  seizing  the  person  of  the  president,  Sancla- 
mente, and  imprisoning  him  at  a  place  a  few  miles  outside  of 
Bogota.  Maroquin  thereupon  declared  himself  possessed  of 
the  executive  power  because  of  the  absence  of  the  president. 
He  then  issued  a  decree  that  public  order  was  disturbed,  and, 
upon  that  ground,  assumed  to  himself  legislative  power  under 
another  provision  of  the  constitution  which  I  have  already 
cited.  Thenceforth,  Maroquin,  without  the  aid  of  any  legis- 
lative body,  ruled  as  the  supreme  executive,  legislative,  civil, 
and  military  authority  in  the  so-called  republic  of  Colombia. 


198  INTERNATIONAL  SUBJECTS 

The  absence  of  Sanclamente  from  the  capital  became  penna- 
nent  by  his  death  in  prison  in  the  year  1902.  When  the 
people  of  Panama  declared  their  independence  in  November 
last,  no  Congress  had  sat  in  Colombia  since  the  year  1898, 
except  the  special  Congress  called  by  Maroquin  to  reject  the 
canal  treaty,  and  which  did  reject  it  by  a  unanimous  vote, 
and  adjourned  without  legislating  on  any  other  subject.  The 
constitution  of  1886  had  taken  away  from  Panama  the  power 
of  self-government  and  vested  it  in  Colombia.  The  cowp 
d'etat  of  Maroquin  took  away  from  Colombia  herself  the 
power  of  government  and  vested  it  in  an  irresponsible 
dictator. 

The  true  nature  of  the  government  against  which  Panama 
rebelled  is  plainly  shown  by  the  proposals  to  the  United 
States  by  the  Bogota  government  upon  receipt  of  the  first 
news  of  the  revolution.  On  the  sixth  of  November  the  United 
States  minister  at  Bogota,  Mr.  Beaupre,  telegraphed  to 
Mr.  Hay: 

Eaiowing  that  the  revolution  has  already  commenced  in  Panama,  Gen- 
eral Reyes  says  that  if  the  Government  of  the  United  States  will  land 
troops  to  preserve  Colombian  sovereignty  and  the  transit  of  the  Isthmus, 
if  requested  by  the  charg6  d'affaires  of  Colombia,  this  Government  will 
declare  martial  law  and  by  virtue  of  vested  constitutional  authority,  when 
public  order  is  disturbed,  will  approve  by  decree  the  ratification  of  the 
canal  treaty  as  signed;  or,  if  the  Government  of  the  United  States  prefers, 
will  call  an  extra  session  of  Congress  with  new  and  friendly  members  next 
May,  to  approve  the  treaty. 

On  the  seventh  of  November  Mr.  Beaupre  telegraphed  to 
Mr.  Hay: 

General  Reyes  leaves  next  Monday  for  Panama  invested  with  full 
powers.  He  has  telegraphed  chiefs  of  the  insurrection  that  his  missionjs  to 
the  interests  of  Isthmus.  He  wishes  answer  from  you  before  leaving,  to  the 
inquiry  in  my  telegram  of  yesterday,  and  wishes  to  know  if  the  American 
commander  will  be  ordered  to  cooperate  with  him  and  with  new  Panama 
government  to  arrange  peace  and  the  approval  of  Canal  Treaty,  which 
will  be  accepted  on  condition  that  the  integrity  of  Colombia  be  preserved. 


ETHICS  OF  THE  PANAMA  QUESTION  199 

He  has  telegraphed  President  of  Mexico  to  ask  the  Government  of  the 
United  States  and  all  the  countries  represented  at  the  Pan-American  Con- 
ference to  aid  Colombia  to  preserve  her  integrity.  The  question  of  the 
approval  of  the  treaty  mentioned  in  my  telegram  yesterday  will  be  ar- 
ranged in  Panama;  he  asks  that  before  taking  definite  action  you  will 
await  his  arrival  there,  and  that  the  Government  of  the  United  States  in 
the  meantime  preserve  the  neutrality  and  transit  of  the  Isthmus,  and  do 
not  recognize  the  new  Government. 

The  General  Reyes  of  these  dispatches  is  now  the  presi- 
dent-elect of  Colombia.  Upon  reading  them,  who  can  fail  to 
see  that  there  was  no  constitutional  government  in  Colombia; 
that  no  government  of  law  protected  the  people  of  Panama 
and  their  interests  against  the  will  of  an  arbitrary  and  foreign 
pK)wer;  that  the  deliberations  and  unanimous  action  of  the 
special  Congress  at  Bogota  had  been  a  sham  and  a  pretense; 
that  Panama's  rights,  that  the  rights  of  the  United  States, 
that  the  world's  rights  to  the  passage  of  the  Isthmus,  had 
been  the  subject  of  disingenuous  juggling  at  the  hands  of 
successful  adventurers,  and  not  of  the  fair  expression  of  a 
free  nation's  will. 

When  these  dispatches  were  received  the  die  was  not  cast 
on  the  Isthmus;  the  United  States  had  not  recognized  the 
new  republic  of  Panama;  she  had  assumed  no  obligations 
toward  the  leaders  of  the  new  movement  or  toward  their 
followers;  Colombia  and  Panama  then  both  held  out  to  us 
the  offer  of  the  right  and  opportunity  to  build  the  canal. 
Colombia  said,  "  We  will  ratify  the  treaty  —  we  will  ratify 
it  by  decree,  or  we  will  call  a  Congress  selected  for  the  pur- 
pose of  ratifying  the  treaty,  as  the  preceding  Congress  was 
selected  for  the  purpose  of  rejecting  it  —  if  you  will  preserve 
our  integrity."  Panama  said,  "  Recognize  our  independence, 
and  the  treaty  follows  of  course,  for  the  building  of  the  canal 
is  our  dearest  hope."  There  was  no  question  of  interest  on 
the  part  of  the  United  States;  the  treaty  was  secure;  the 
canal  was  secure;  but  there  was  a  question  of  right,  a  ques- 


200  INTERNATIONAL  SUBJECTS 

tion  of  justice,  a  question  of  national  conscience  to  be  dealt 
with.  What  was  the  duty  of  the  United  States  toward  the 
people  of  Panama  and  the  dictator  at  Bogota  ? 

The  people  of  Panama  were  the  real  owners  of  the  canal 
route;   it  was  because  their  fathers  dwelt  in  the  land,  be- 
cause they  won  their  independence  from  Spain,  because  they 
organized  a  civil  society  there  that  it  was  not  to  be  treated  as 
one  of  the  waste  places  of  the  earth.    They  owned  that  part 
of  the  earth's  surface  just  as  much  as  the  state  of  New  York 
owns  the  Erie  Canal.    When  the  sovereign  state  of  Panama 
confederated  itself  with  the  other  states  of  Colombia  under 
the  constitution  of  1863,  it  did  not  part  with  its  title  or  its 
substantial  rights,  but  constituted  the  Federal  Government 
its  trustee  for  the  representation  of  its  rights  in  all  foreign 
relations,  and  imposed  upon  that  Government  the  duty  of 
protecting  them.    The  trustee  was  faithless  to  its  trust;   it 
repudiated  its  obligations  without  the  consent  of  the  true 
owner;  it  seized  by  the  strong  hand  of  military  power  the 
rights  which  it  was  boimd  to  protect;  Colombia  herself  broke 
the  bonds  of  union  and  destroyed  the  compact  upon  which 
alone  depended  her  right  to  represent  the  owner  of  the  soil. 
The  question  for  the  United  States  was:  Shall  we  take  this 
treaty  from  the  true  owner  or  shall  we  take  it  from  the  faith- 
less trustee,  and  for  that  piurpose  a  third  time  put  back  the 
yoke  of  foreign  domination  upon  the  neck  of  Panama,  by  the 
request  of  that  Government  which  has  tried  to  play  toward 
us  the  part  of  the  highwayman  ?    There  was  no  provision  of 
our  treaty  with  Colombia  which  required  us  to  answer  to  her 
call,  for  our  guaranty  of  her  sovereignty  in  that  treaty  relates 
solely  to  foreign  aggression.    There  was  no  rule  of  interna- 
tional law  which  required  us  to  recognize  the  wrongs  of 
Panama  mr  the  justice  of  her  cause,  for  international  law  does 
not  concern  itself  with  the  internal  aflFairs  of  states.    But  I 
put  it  t%  the  conscience  of  the  American  people  who  are  pass- 


ETHICS  OF  THE  PANAMA  QUESTION  201 

ing  judgment  upon  the  action  of  their  Government,  whether 
the  decision  of  our  President  and  Secretary  of  State  and  the 
Senate  was  not  a  righteous  decision. 

By  all  the  principles  of  justice  among  men  and  among 
nations  that  we  have  learned  from  our  fathers,  and  that  all 
peoples  and  all  governments  should  maintain,  the  revolu- 
tionists in  Panama  were  right,  the  people  of  Panama  were 
entitled  to  be  free  again,  the  Isthmus  was  theirs  and  they 
were  entitled  to  govern  it;  and  it  would  have  been  a  shame- 
ful thing  for  the  Government  of  the  United  States  to  return 
them  again  to  servitude. 

It  is  hardly  necessary  to  say  now  that  our  Government  had 
no  part  in  devising,  fomenting,  or  bringing  about  the  revolu- 
tion on  the  Isthmus  of  Panama.  President  Roosevelt  said  in 
his  message  to  Congress  of  January  4,  1904: 

I  hesitate  to  refer  to  the  injurious  insinuations  which  have  been  made 
of  complicity  by  this  Government  in  the  revolutionary  movement  in 
Panama.  They  are  as  destitute  of  foundation  as  of  propriety.  The  only 
excuse  for  my  mentioning  them  is  the  fear  lest  unthinking  persons  might 
mistake  for  acquiescence  the  silence  of  mere  self-respect.  I  think  proper  to 
say,  therefore,  that  no  one  connected  with  this  Government  had  any  part 
in  preparing,  inciting,  or  encouraging  the  late  revolution  on  the  Isthmus  of 
Panama,  and  that  save  from  the  reports  of  our  naval  and  military  officers, 
given  above,  no  one  connected  with  this  Government  had  any  previous 
knowledge  of  the  revolution  except  such  as  was  accessible  to  any  person  of 
ordinary  inteUigence  who  read  the  newspapers  and  kept  up  a  current 
acquaintance  with  public  affairs. 

The  people  of  the  United  States,  without  distinction  of 
party,  will  give  to  that  statement  their  unquestioning  belief. 
All  the  world  knew  that  there  would  be  a  rising  by  the 
people  of  Panama,  if  the  Colombian  Congress  adjourned 
without  approving  the  treaty,  as  it  did  adjourn  on  the  thirty- 
first  of  October.  The  newspapers  of  the  United  States  were 
filled  with  statements  to  that  eflFect,  and  our  State  and  Navy 
Departments  could  not  fail  to  be  aware  of  it.  They  took  the 
same  steps  they  had  always  taken  under  similar  circum- 


202  INTERNATIONAL  SUBJECTS 

stances  to  have  naval  vessels  present  to  keep  the  transit  open 
and  protect  American  life  and  property.  If  any  criticism  is 
to  be  made  upon  their  course,  it  is  that  there  was  too  little 
rather  than  too  much  prevision  and  preparation.  There  was 
no  naval  vessel  of  the  United  States  at  the  city  of  Panama, 
and  there  were  no  armed  forces  of  the  United  States  there 
when  the  rising  occurred.  There  was  one  small  vessel  at 
Colon  which  was  able  to  land  a  force  of  forty-two  marines 
and  blue-jackets;  that  was  the  entire  force  which  the  United 
States  had  on  the  Isthmus  at  the  time  of  the  revolution. 
They  were  landed  at  Colon  as  our  troops  had  many  times 
before  been  landed,  and  they  were  landed  under  these  cir- 
cumstances: On  the  morning  of  November  third,  the  day  of 
the  rising  at  Panama,  about  four  hundred  and  fifty  Colom- 
bian troops  landed  at  Colon  and  their  two  generals  proceeded 
by  rail  to  the  city  of  Panama,  where  they  were  arrested  and 
placed  in  confinement  by  the  insurgents,  who  had  been 
joined  by  all  the  Colombian  troops  on  the  Isthmus  except  the 
four  hundred  and  fifty  just  landed,  and  who  had  a  force  of 
fifteen  hundred  men  under  arms.  On  the  morning  of  the 
next  day,  the  fourth  of  November,  the  remaining  com- 
mander of  this  body  of  Colombian  troops  in  Colon  sent  a 
notice  to  the  American  consul  that  if  the  officers  who  had 
been  arrested  by  the  insurgents  in  Panama  the  evening 
before  were  not  released  by  two  o'clock  in  the  afternoon,  he 
would  open  fire  on  the  town  of  Colon  and  kill  every  United 
States  citizen  in  the  place.  There  was  then  no  American 
armed  force  of  any  description  on  the  soil  of  the  Isthmus. 
The  Nashville  was  in  the  harbor.  The  American  consul  ap- 
pealed to  the  commander  of  the  Nashville  for  protection,  and 
he  landed  the  forty-two  marines  and  blue-jackets.  They  took 
possession  of  the  shed  of  the  Panama  Railroad  Company,  a 
stone  building  capable  of  defense,  collected  there  the  Ameri- 
can men  residing  in  Colon,  sent  the  American  women  and 


ETHICS  OF  THE  PANAMA  QUESTION  203 

children  on  board  a  Panama  Railroad  steamer  and  a  Ger- 
man steamer  which  were  lying  at  the  dock,  and  prepared  to 
receive  the  threatened  attack.  The  building  was  surrounded 
by  the  Colombian  troops,  and  for  an  hour  and  a  half  this 
Uttle  force  stood  to  its  arms  ready  to  fire  and  expecting  to 
receive  the  threatened  and  apparently  intended  attack  of  ten 
times  their  number.  Then  cooler  judgment  prevailed  with 
the  Colombian  oflBcers,  and  the  tension  was  relieved.  On 
the  following  day  a  renewal  of  the  threatening  attitude  of  the 
Colombian  troops  led  to  a  reoccupation  of  the  railroad  shed 
and  a  return  of  the  women  and  children  to  the  steamers;  but 
again  the  danger  passed  without  conflict;  and  on  the  evening 
of  the  second  day,  the  fifth  of  November,  after  conferences 
with  the  insurgent  leaders,  in  which  the  American  officers 
took  no  part,  the  Colombian  troops  boarded  a  Colombian 
ship  and  sailed  away  from  the  harbor  of  Colon,  leaving  no 
Colombian  force  on  the  Isthmus.  The  commander  of  the 
Nashville  closes  his  report  of  these  occurrences  in  these 
words; 

I  beg  to  assure  the  Department  that  I  had  no  part  whatever  in  the  nego- 
tiations that  were  carried  on  between  Colonel  Torres  and  the  representa- 
tives of  the  provisional  government;  that  I  landed  an  armed  force  only 
when  the  lives  of  American  citizens  were  threatened,  and  withdrew  this 
force  as  soon  as  there  seemed  to  be  no  ground  for  further  apprehension  of 
injury  to  American  Uves  and  property;  that  I  relanded  an  armed  force 
because  of  the  failure  of  Colonel  Torres  to  carry  out  his  agreement  to  with- 
draw and  announced  intention  to  return;  and  that  my  attitude  throughout 
was  strictly  neutral  as  between  the  two  parties,  my  only  purpose  being  to 
protect  the  Uves  and  property  of  American  citizens  and  to  preserve  the 
free  and  imintemipted  transit  of  the  Isthmus. 

Objection  has  been  made  that  owing  to  American  direc- 
tion the  Panama  Railroad  Company  refused  to  transport  the 
four  hundred  and  fifty  Colombian  soldiers  to  Panama  to 
attack  the  fifteen  hundred  insurgents  in  arms  there,  and 
that  the  officers  of  the  American  Government  were  directed 
to  prevent  any  troops  of  either  party  from  making  the 


204  INTERNATIONAL  SUBJECTS 

line  of  the  railroad  the  theatre  of  hostilities;  but  this  was  no 
new  policy  devised  or  applied  for  this  occasion;  and  it  was 
impartial  as  to  both  parties  to  the  controversy.  The  insur- 
gents were  anxious  that  the  transportation  should  be  given, 
for  they  outnumbered  the  Colombians  more  than  three  to 
one,  and  when  it  was  refused  they  asked  for  transportation 
for  themselves  to  attack  the  Colombians  in  Colon,  and  that 
was  refused.  The  year  before  a  communication  had  been 
sent  to  the  Commander  of  the  Colombian  forces  and  the 
commander  of  the  insurgent  forces  on  the  Isthmus  in  these 

words: 

U.  S.  S.  Cincinnati,  September  19, 1902. 
Dear  Sir:  —  I  have  the  honor  to  inform  you  that  the  United  States 
naval  forces  are  guarding  the  railway  trains  and  the  line  of  transit  across 
the  Isthmus  of  Panama  from  sea  to  sea,  and  that  no  p>ersons  whatever  will 
be  allowed  to  obstruct,  embarrass,  or  interfere  in  any  manner  with  the 
trains  or  the  route  of  transit.  No  armed  men  except  forces  of  the  United 
States  will  be  allowed  to  come  on  or  use  the  line. 

All  of  this  is  without  prejudice  or  any  desire  to  interfere  in  domestic 
contentions  of  the  Colombians. 

Please  acknowledge  receipt  of  this  communication. 
With  assurances  of  high  esteem  and  consideration,  I  remain. 
Very  respectfully, 

T.  C.  McLean, 
Commander,  United  States  Navy,  Commanding. 

The  policy  embodied  in  this  oflficial  notice  of  1902  was  the 
same  policy  followed  in  November,  1903,  and  none  other;  it 
was  the  outcome  of  the  experience  gained  during  the  long 
course  of  warfare  and  the  painful  experience  of  property 
destroyed  and  traffic  suspended,  which  showed  that  if  the 
rights  of  the  United  States  on  the  Isthmus  of  Panama  were 
to  be  protected  they  must  be  protected  by  the  United  States 
itself  insisting  that  its  right  of  way  should  not  be  made  the 
field  of  battle,  as  it  had  been  in  1885,  when  Colon  was  burned 
with  the  railroad  terminals  and  wharves,  when  Panama  was 
captured,  track  was  torn  up,  cars  were  broken  open,  telegraph 
wires  were  cut  and  armored  trains  were  a  necessity.    The 


ETHICS  OF  THE  PANAMA  QUESTION  205 

warrant  for  the  execution  of  that  policy  is  the  right  of  self- 
protection.  The  things  done  by  our  oflBcers  might  not  have 
been  permissible  in  the  territory  of  a  country  of  strong  and 
orderly  government  possessing  and  exercising  the  power  to 
prevent  lawless  violence  and  to  protect  the  lives  and  property 
of  citizens  and  foreigners  alike;  but  action  of  this  character 
is,  according  to  the  universal  rules  obtaining  among  civilized 
nations,  not  only  permissible,  but  a  duty  of  the  highest  obli- 
gation in  countries  whose  feeble  governments  exercise  im- 
perfect control  in  their  own  territory  and  fail  to  perform  the 
duties  of  sovereignty  for  the  protection  of  life  and  property. 
The  armed  force  of  American  sailors  who  during  the  past  few 
weeks  have  been  protecting  American  life  and  property  in  the 
friendly  capital  of  Korea  have  not  been  making  war  upon 
that  power.  The  expeditionary  force  which  marched  to 
Peking  under  Chaffee  in  the  summer  of  1900,  and  carrying 
the  capital  of  China  by  assault,  rescued  the  residents  of  the 
American  legation,  was  not  making  war  upon  that  nation, 
which  relies  with  just  confidence  upon  our  constant  friend- 
ship. In  that  category  of  incapacity  to  protect  the  rights 
of  others,  Colombia  has  placed  herself  as  to  the  Isthmus  of 
Panama  by  the  record  of  the  past  years.  She  could  not  main- 
tain order  upon  the  Isthmus  because  she  did  not  seek  to 
maintain  justice;  she  could  not  command  respect  for  her 
laws  because  she  had  abandoned  the  rule  of  law  and  sub- 
mitted to  the  control  of  an  arbitrary  dictator.  The  right  of 
self -protection  for  American  interests  rested  upon  these  facts 
emphasized  and  enforced  by  the  grant  of  power  in  the  treaty 
of  1846,  and  by  Colombia's  own  appeals  to  the  American 
Government  to  intervene  for  the  maintenance  of  order. 

It  was  not  the  neutral  force  of  forty-two  marines  and  blue- 
jackets, or  anything  that  the  American  Government  or 
American  oflficers  said  or  did,  that  led  the  four  hundred  and 
fifty  Colombians  to  retire  from  Colon;  it  was  the  fact  that 


206  INTERNATIONAL  SUBJECTS 

they  found  themselves  alone  among  a  hostile  and  unanimous 
people  with  an  overwhelming  insurgent  force  in  arms  against 
them  which  left  no  alternative  but  capture  or  retreat.  The 
recognition  of  independence  and  the  treaty  with  Panama  are 
the  real  grounds  of  Colombia's  complaint,  and  upon  the 
justice  of  those  acts  America  stands,  fairly,  openly,  with  full 
disclosure  of  every  step  taken  and  every  object  sought. 

Upon  the  firm  foundation  of  that  righteous  action,  with  the 
willing  authority  of  the  lawful  owners  of  the  soil,  we  will  dig 
the  canal,  not  for  selfish  reasons,  not  for  greed  of  gain,  but 
for  the  world's  commerce,  benefiting  Colombia  most  of  all. 
We  shall  not  get  back  the  money  we  spend  upon  the  canal 
any  more  than  we  shall  get  back  the  money  we  have  expended 
to  make  Cuba  a  free  and  independent  republic,  or  the  money 
we  have  expended  to  set  the  people  of  the  Philippines  on  the 
path  of  ordered  liberty  and  competency  for  self-government. 
But  we  shall  promote  oiu*  commerce,  we  shall  unite  our  At- 
lantic and  Pacific  coasts,  we  shall  render  inestimable  service 
to  mankind,  and  we  shall  grow  in  greatness  and  honor  and  in 
the  strength  that  comes  from  difficult  tasks  accomplished 
and  from  the  exercise  of  the  power  that  strives  in  the  nature 
of  a  great  constructive  people. 


THE  OBLIGATIONS  OF  THE  UNITED  STATES 
AS  TO  PANAMA  CANAL  TOLLS 

ADDRESS  IN  THE  SENATE  OP  THE  UNITED  STATES 
JANUARY  21,   1913 

Chapter  890  of  the  laws  of  1912,  entitled  "  An  Act  to  provide  for  the  opening, 
maintenance,  protection,  and  operation  of  the  Panama  Canal,  and  the  sanitation 
and  government  of  the  Canal  Zone,"  passed  the  Senate,  August  9, 1912,  and  became 
a  law  August  24,  1912.  When  the  bill  was  before  the  Senate  for  final  action,  Mr. 
Root  moved  to  strike  out  the  line  in  Section  5  providing  that  "  no  tolls  shall  be 
levied  upon  vessels  engaged  in  the  coastwise  trade  of  the  United  States."  This 
amendment  was  rejected  without  roll  call,  and  the  bill  passed  as  originally  reported: 
yeas,  47;  nays,  15;  not  voting,  32. 

On  December  11, 1912,  Sir  Edward  Grey,  Principal  Secretary  for  Foreign  AfiFairs 
of  Great  Britain,  formally  protested  to  the  United  States  against  this  provision  of  the 
Panama  law,  as  a  violation  of  the  terms  of  the  Hay-Pauncefote  Treaty  between 
Great  Britain  and  the  United  States  signed  November  18,  1901,  and  proclaimed 
February  22,  1902. 

On  January  14, 1913,  Mr.  Root  introduced  Senate  Bill  No.  8114,  being  in  identi- 
cal terms  with  his  motion  above  referred  to.  On  the  same  date  he  announced  his 
intention  to  speak  upon  the  subject  on  January  21. 

On  March  5,  1914,  President  Wilson  delivered  a  message  to  Congress  in  person 
in  which  he  said: 

I  have  come  to  ask  you  for  the  repeal  of  that  provision  of  the  Panama  Canal 
Act  of  August  24, 1912,  which  exempts  vessels  engaged  in  the  coastwise  trade  of 
the  United  States  from  payment  of  tolls  and  to  urge  upon  you  the  justice,  the 
wisdom,  and  the  large  policy  of  such  a  repeal  with  the  utmost  earnestness  of 
which  I  am  capable. 

In  my  own  judgment,  very  fully  considered  and  maturely  formed,  that 
exemption  constitutes  a  mistaken  economic  policy  from  every  point  of  view, 
and  is,  moreover,  in  plain  contravention  of  the  treaty  with  Great  Britain  con- 
cerning the  canal  concluded  on  November  18,  1901.  But  I  have  not  come  to 
urge  upon  you  my  personal  views.  I  have  come  to  state  to  you  a  fact  and  a 
situation.  Whatever  may  be  our  own  differences  of  opinion  concerning  this 
much-debated  measure,  its  meaning  is  not  debated  outside  the  United  States. 
Everywhere  else  the  language  of  the  treaty  is  given  but  one  interpretation,  and 
that  interpretation  precludes  the  exemption  I  am  asking  you  to  repeal.  We 
consented  to  the  treaty;  its  language  we  accepted,  if  we  did  not  originate;  and 
we  are  too  big,  too  powerful,  too  self-respecting  a  nation  to  interpret  with  too 
strained  or  refined  a  reading  the  words  of  our  own  promises  just  because  we 
have  power  enough  to  give  us  leave  to  read  them  as  we  please.  The  large  thing 
to  do  is  the  only  thing  that  we  can  afford  to  do,  a  volimtary  withdrawal  from 
a  position  everywhere  questioned  and  misunderstood.   We  ought  to  reverse  our 

M7 


208  INTERNATIONAL  SUBJECTS 

action  without  rfusing  the  question  whether  we  were  right  or  wrong,  and  so 

once  more  deserve  our  reputation  for  generosity  and  for  the  redemption  of 

every  obligation  without  quibble  or  hesitation.    I  ask  this  of  you  in  support 

of  the  foreign  policy  of  the  Administration. 

The  repealing  bill  was  debated  at  length  in  both  Houses  of  Congress  and  on 

May  21,  1914,  Mr.  Root  delivered  his  address  entitled:    "  Panama  Canal  Tolls: 

Speech  in  Reply,"  which  is  printed  immediately  following  the  address  below. 

Mr.  T.  W.  Sims,  of  Tennessee,  had  meanwhile  introduced  in  the  House  of  Repre- 
sentatives a  bill  to  repeal  the  clause  exempting  American  coastwise  shipping  from 
the  payment  of  tolls  on  the  Panama  Canal,  which  passed  the  House,  March  SI,  1914, 
and  passed  the  Senate,  Jime  11,  1914,  by  the  following  vote:  yeas,  50;  nays,  86; 
not  voting,  10.    It  was  approved  June  15,  1914. 

This  repealing  act  is  Public  llSl,  Sixty-third  Congress,  Second  session. 

MR.  PRESIDENT,  in  the  late  days  of  last  summer,  after 
nearly  nine  months  of  continuous  session.  Congress 
enacted,  in  the  bill  to  provide  for  the  administration  of  the 
Panama  Canal,  a  provision  making  a  discrimination  between 
the  tolls  to  be  charged  upon  foreign  vessels  and  the  tolls  to  be 
charged  upon  American  vessels  engaged  in  coastwise  trade. 
We  all  must  realize,  as  we  look  back,  that  when  that  provi- 
sion was  adopted  the  members  of  both  Houses  were  much  ex- 
hausted; our  minds  were  not  working  with  their  full  vigor; 
we  were  weary  physically  and  mentally.  Such  discussion  as 
there  was  was  to  empty  seats.  In  neither  House  of  Congress, 
during  the  period  that  this  provision  was  under  discussion, 
could  there  be  found  more  than  a  scant  dozen  or  two  of  mem- 
bers. The  provision  has  been  the  cause  of  great  regret  to  a 
multitude  of  our  fellow-citizens,  whose  good  opinion  we  all 
desire  and  whose  leadership  of  opinion  in  the  country  makes 
their  approval  of  the  course  of  our  Congress  an  important 
element  in  maintaining  that  confidence  in  government  which 
is  so  essential  to  its  success.  The  provision  has  caused  a  pain- 
ful impression  throughout  the  world  that  the  United  States 
has  departed  from  its  often-announced  rule  of  equality  of 
opportunity  in  the  use  of  the  Panama  Canal,  and  is  seeking  a 
special  advantage  for  itself  in  what  is  beheved  to  be  a  viola- 
tion of  the  obligations  of  a  treaty.    Mr.  President,  that 


PANAMA  CANAL  TOLLS  209 

opinion  of  the  civilized  world  is  something  which  we  may  not 
lightly  disregard.  "A  decent  respect  to  the  opinions  of  man- 
kind "  was  one  of  the  motives  stated  for  the  people  of  these 
colonies  in  the  great  Declaration  of  American  Independence. 

The  effect  of  the  provision  has  thus  been  doubly  unfortu- 
nate, and  I  ask  the  Senate  to  listen  to  me  while  I  endeavor  to 
state  the  situation  in  which  we  find  ourselves;  to  state  the 
case  which  is  made  against  the  action  that  we  have  taken,  in 
order  that  I  may  present  to  the  Senate  the  question  whether 
we  should  not  either  submit  to  an  impartial  tribunal  the 
question  whether  we  are  right,  so  that  if  we  are  right,  we  may 
be  vindicated  in  the  eyes  of  all  the  world;  or  whether  we 
should  not,  by  a  repeal  of  the  provision,  retire  from  the 
position  which  we  have  taken. 

La  the  year  1850,  Mr.  President,  there  were  two  great 
powers  in  possession  of  the  North  American  Continent  to  the 
north  of  the  Rio  Grande.  The  United  States  had  but  just 
come  to  its  full  stature.  By  the  Webster-Ashburton  Treaty 
of  1842  our  northeastern  boundary  had  been  settled,  leaving 
to  Great  Britain  that  tremendous  stretch  of  seacoast  includ- 
ing Nova  Scotia,  New  Brunswick,  Newfoundland,  Labrador, 
and  the  shores  of  the  Gulf  of  St.  Lawrence,  now  forming  the 
Province  of  Quebec.  In  1846  the  Oregon  boundary  had  been 
settled,  assuring  to  the  United  States  a  title  to  that  vast 
region  which  now  constitutes  the  states  of  Washington, 
Oregon,  and  Idaho.  In  1848  the  treaty  of  Guadalupe- 
Hidalgo  had  given  to  us  that  great  empire  wrested  from 
Mexico  as  a  result  of  the  Mexican  War,  which  now  spreads 
along  the  coast  of  the  Pacific  as  the  state  of  California  and 
the  great  region  between  California  and  Texas. 

Inspired  by  the  manifest  requirements  of  this  new  empire, 
the  United  States  turned  its  attention  to  the  possibility  of 
realizing  the  dream  of  centuries  and  connecting  its  two  coasts 
—  its  old  coast  upon  the  Atlantic  and  its  new  coast  upon  the 


210  E^ERNATIONAL  SUBJECTS 

Pacific  —  by  a  ship  canal  through  the  Isthmus;  but  when  it 
turned  its  attention  in  that  direction  it  found  the  other  em- 
pire holding  the  place  of  advantage.  Great  Britain  had  also 
her  coast  upon  the  Atlantic  and  her  coast  upon  the  Pacific, 
to  be  joined  by  a  canal.  Further  than  that.  Great  Britain 
was  a  Caribbean  power.  She  had  Bermuda  and  the  Baha- 
mas; she  had  Jamaica  and  Trinidad;  she  had  the  Windward 
Islands  and  the  Leeward  Islands;  she  had  British  Guiana 
and  British  Honduras;  she  had,  moreover,  a  protectorate 
over  the  Mosquito  Coast,  a  great  stretch  of  territory  upon  the 
eastern  shore  of  Central  America  which  included  the  river 
San  Juan  and  the  valley  and  harbor  of  San  Juan  de  Nica- 
ragua, or  Greytown.  All  men's  minds  then  were  concen- 
trated upon  the  Nicaragua  Canal  route,  as  they  were  until 
after  the  treaty  of  1901  was  made. 

And  thus  when  the  United  States  turned  its  attention  to- 
ward joining  these  two  coasts  by  a  canal  through  the  Isthmus 
it  found  Great  Britain  in  possession  of  the  eastern  end  of  the 
route  which  men  generally  believed  would  be  the  most  avail- 
able route  for  the  canal.  Accordingly,  the  United  States 
sought  a  treaty  with  Great  Britain  by  which  Great  Britain 
should  renounce  the  advantage  which  she  had  and  admit  the 
United  States  to  equal  participation  with  her  in  the  control 
and  the  protection  of  a  canal  across  the  Isthmus.  From  that 
came  the  Clayton-Bulwer  Treaty. 

Let  me  repeat  that  this  treaty  was  sought  not  by  England 
but  by  the  United  States.  Mr.  Clayton,  who  was  Secretary 
of  State  at  the  time,  sent  our  minister  to  France,  Mr.  Rives, 
to  London  for  the  pmpose  of  m'ging  upon  Lord  Palmerston 
the  making  of  the  treaty.  The  treaty  was  made  by  Great 
Britain  as  a  concession  to  the  urgent  demands  of  the  United 
States. 

I  should  have  said,  in  speaking  about  the  urgency  with 
which  the  United  States  sought  the  Clayton-Bulwer  Treaty, 


PANAMA  CANAL  TOLLS  211 

that  there  were  two  treaties  made  with  Nicaragua,  one  by 
Mr.  Heis  and  one  by  Mr.  Squire,  both  representatives  of  the 
United  States.  Each  gave,  so  far  as  Nicaragua  could,  great 
powers  to  the  United  States  in  regard  to  the  construction  of  a 
canal,  but  they  were  made  without  authorization  from  the 
United  States,  and  they  were  not  approved  by  the  Govern- 
ment of  the  United  States  and  were  never  sent  to  the  Senate. 
Mr.  Clayton,  however,  held  those  treaties  in  abeyance  as  a 
means  of  inducing  Great  Britain  to  enter  into  the  Clayton- 
Bulwer  Treaty.  He  held  them  practically  as  a  whip  over  the 
British  negotiators,  and  having  accomplished  the  purpose 
they  were  thrown  into  the  waste  basket. 

By  that  treaty  Great  Britain  agreed  with  the  United  States 
that  neither  Government  should  "  ever  obtain  or  maintain 
for  itself  any  exclusive  control  over  the  ship  canal ";  that 
neither  would  "  make  use  of  any  protection  "  which  either 
afforded  to  a  canal  "  or  any  alliance  which  either  "  might 
have  "  with  any  State  or  people  for  the  purpose  of  erecting  or 
maintaining  any  fortifications,  or  of  occupying,  fortifying, 
or  colonizing  Nicaragua,  Costa  Rica,  the  Mosquito  Coast,  or 
any  part  of  Central  America,  or  of  assuming  or  exercising 
dominion  over  the  same,"  and  that  neither  would  "  take 
advantage  of  any  intimacy,  or  use  any  alliance,  connection 
or  influence  that  either  "  might  "  possess  with  any  State  or 
Government  through  whose  territory  the  said  canal  may 
pass,  for  the  purpose  of  acquiring  or  holding,  directly  or  in- 
directly, for  the  citizens  or  subjects  of  the  one,  any  rights  or 
advantages  in  regard  to  commerce  or  navigation  through  the 
said  canal  which  shall  not  be  offered  on  the  same  terms  to 
the  citizens  or  subjects  of  the  other." 

You  will  observe,  Mr.  President,  that  under  these  provi- 
sions the  United  States  gave  up  nothing  that  it  then  had.  Its 
obligations  were  entirely  looking  to  the  future;  and  Great 
Britain  gave  up  its  rights  under  the  protectorate  over  the 


212  INTERNATIONAL  SUBJECTS 

Mosquito  Coast,  gave  up  its  rights  to  what  was  supposed  to 
be  the  eastern  terminus  of  the  canal.    And,  let  me  say  with- 
out recurring  to  it  again,  under  this  treaty,  after  much  dis- 
cussion which  ensued  as  to  the  meaning  of  its  terms,  Great 
Britain  did  surrender  her  rights  to  the  Mosquito  Coast,  so 
that  the  position  of  the  United  States  and  Great  Britain  be- 
came a  position  of  absolute  equahty.    Under  this  treaty  also 
both  parties  agreed  that  each  should  "  enter  into  treaty 
stipulations  with  such  of  the  Central  American  States  as 
they  "  might  "  deem  advisable  for  the  purpose  "  —  I  now 
quote  the  words  of  the  treaty  —  "  for  the  purpose  of  more 
eflfectually  carrying  out  the  great  design  of  this  convention, 
namely,  that  of  constructing  and  maintaining  the  said  canal  as 
a  ship  communication  between  the  two  oceans  for  the  benefit 
of  mankind,  on  equal  terms  to  all,  and  of  protecting  the  same." 
That  declaration,  Mr.  President,  is  the  comer  stone  of  the 
rights  of  the  United  States  upon  the  Isthmus  of  Panama, 
rights  having  their  origin  in  a  solemn  declaration  that  there 
should  be  constructed  and  maintained  a  ship  canal  "  be- 
tween the  two  oceans  for  the  benefit  of  mankind,  on  equal 
terms  to  all." 
In  the  eighth  article  of  that  treaty  the  parties  agreed: 
The  Governments  of  the  United  States  and  Great  Britain  having  not 
only  desired,  in  entering  into  this  convention,  to  accompUsh  a  particular 
object,  but  also  to  establish  a  general  principle,  they  hereby  agree  to 
extend  their  protection,  by  treaty  stipulations,  to  any  other  practicable 
communications,  whether  by  canal  or  railway,  across  the  isthmus  which 
connects  North  and  South  America,  and  especially  to  the  interoceanic 
communications,  should  the  same  prove  to  be  practicable,  whether  by 
canal  or  railway,  which  are  now  proposed  to  be  established  by  the  way  of 
Tehuantejiec  or  Panama.    In  granting,  however,  their  joint  protection  to 
any  such  canals  or  railways  as  are  by  this  article  spjecified,  it  is  always 
imderstood  by  the  United  States  and  Great  Britain  that  the  parties  con- 
structing or  owning  the  same  shall  impose  no  other  charges  or  conditions 
of  traffic  thereupon  than  the  aforesaid  Governments  shall  approve  of  as 
just  and  equitable;  and  that  the  same  canals  or  railways,  being  open  to 
the  citizens  and  subjects  of  the  United  States  and  Great  Britain  on  equal 


PANAMA  CANAL  TOLLS  213 

terms,  shall  also  be  open  on  like  terms  to  the  citizens  and  subjects  of  every 
other  State  which  is  willing  to  grant  thereto  such  protection  as  the  United 
States  and  Great  Britain  engage  to  aflPord. 

There,  Mr.  President,  is  the  explicit  agreement  for  equality 
of  treatment  of  the  citizens  of  the  United  States  and  of  the 
citizens  of  Great  Britain  in  any  canal,  wherever  it  may  be 
constructed,  across  the  Isthmus.  That  was  the  fundamental 
principle  embodied  in  the  treaty  of  1850.  And  we  are  not 
without  an  authoritative  construction  as  to  the  scope  and 
requirements  of  an  agreement  of  that  description,  because 
we  have  another  treaty  with  Great  Britain  —  a  treaty  which 
formed  one  of  the  great  landmarks  in  the  diplomatic  history 
of  the  world,  and  one  of  the  great  steps  in  the  progress  of 
civilization — the  Treaty  of  Washington  of  1871,  under  which 
the  Alabama  Claims  were  submitted  to  arbitration.  Under 
that  treaty  there  were  provisions  for  the  use  of  the  American 
canals  along  the  waterway  of  the  Great  Lakes,  and  the  Cana- 
dian canals  along  the  same  line  of  communication,  upon 
equal  terms  to  the  citizens  of  the  two  countries. 

Some  years  after  the  treaty,  Canada  undertook  to  do  some- 
thing quite  similar  to  what  we  have  undertaken  to  do  in  this 
law  about  the  Panama  Canal.  It  provided  that  while 
nominally  a  toll  of  twenty  cents  a  ton  should  be  charged 
upon  the  merchandise  both  of  Canada  and  of  the  United 
States  there  should  be  a  rebate  of  eighteen  cents  for  all  mer- 
chandise which  went  to  Montreal  or  beyond,  leaving  a  toll  of 
but  two  cents  a  ton  for  that  merchandise.  The  United  States 
objected;  and  I  beg  your  indulgence  while  I  read  from  the 
message  of  President  Cleveland  upon  that  subject,  sent  to 
the  Congress,  August  23,  1888.    He  says: 

By  Article  27  of  the  Treaty  of  1871  provision  was  made  to  secure  to 
the  citizens  of  the  United  States  the  use  of  the  Welland,  St.  Lawrence,  and 
other  canals  in  the  Dominion  of  Canada  on  terms  of  equality  with  the 
inhabitants  of  the  Dominion,  and  also  to  secure  to  the  subjects  of  Great 
Britain  the  use  of  the  St.  Clair  Flats  Canal  on  terms  of  equality  with  the 
inhabitants  of  the  United  States. 


214  INTERNATIONAL  SUBJECTS 

The  equality  with  the  inhabitants  of  the  Dominion  which  we  were 
promised  in  the  use  of  the  canals  of  Canada  did  not  secure  to  us  freedom 
from  tolls  in  their  navigation,  but  we  had  a  right  to  expect  that  we,  being 
Americans  and  interested  in  American  commerce,  would  be  no  more 
burdened  in  regard  to  the  same  than  Canadians  engaged  in  their  own 
trade;  and  the  whole  spirit  of  the  concession  made  was,  or  should  have 
been,  that  merchandise  and  prop>erty  transported  to  an  American  market 
through  these  canals  should  not  be  enhanced  in  its  cost  by  tolls  many 
times  higher  than  such  as  were  carried  to  an  adjoining  Canadian  market. 
All  our  citizens,  producers  and  consimiers  as  well  as  vessel  owners,  were 
to  enjoy  the  equality  promised. 

And  yet  evidence  has  for  some  time  been  before  the  Congress,  fm-nished 
by  the  Secretary  of  the  Treasury,  showing  that  while  the  tolls  charged  in 
the  first  instance  are  the  same  to  all,  such  vessels  and  cargoes  as  are 
destined  to  certain  Canadian  ports  — 

their  coastwise  trade  — 

are  allowed  a  refund  of  nearly  the  entire  tolls,  while  those  boimd  for 

American  ports  are  not  allowed  any  such  advantage. 

To  promise  equality  and  then  in  practice  make  it  conditional  up>on  our 
vessels  doing  Canadian  business  instead  of  their  own,  is  to  fulfill  a  promise 
with  the  shadow  of  performance. 

Upon  the  representations  of  the  United  States  embodying 
that  view,  Canada  retired  from  the  p>osition  which  she  had 
taken,  rescinded  the  provision  for  differential  tolls,  and  put 
American  trade  going  to  American  markets  on  the  same  basis 
of  tolls  as  Canadian  trade  going  to  Canadian  markets.  She 
did  not  base  her  action  upon  any  idea  that  there  was  no  com- 
petition between  trade  to  American  ports  and  trade  to  Cana- 
dian ports,  but  she  recognized  the  law  of  equality  in  good 
faith  and  honor;  and  to  this  day  that  law  is  being  accorded 
to  us  and  by  each  great  nation  to  the  other. 

I  have  said,  Mr.  President,  that  the  Clayton-Bulwer  Treaty 
was  sought  by  us.  In  seeking  it,  we  declared  to  Great  Britain 
what  it  was  that  we  sought.  I  ask  the  Senate  to  listen  to  the 
declaration  that  we  made  to  induce  Great  Britain  to  enter 
into  that  treaty,  —  to  listen  to  it  because  it  is  the  declaration 
by  which  we  are  in  honor  bound  as  truly  as  if  it  were  signed 
and  sealed. 


PANAMA  CANAL  TOLLS  215 

Here  I  will  read  from  the  report  made  to  the  Senate  on 
April  5, 1900,  by  Senator  Cushman  K.  Davis,  then  chairman 
of  the  Committee  on  Foreign  Relations.  So  you  will  perceive 
that  this  is  no  new  matter  to  the  Senate  of  the  United  States, 
and  that  I  am  not  proceeding  upon  my  own  authority  in 
thinking  it  worthy  of  your  attention. 

Mr.  Rives  was  instructed  to  say  and  did  say  to  Lord  Pal- 
merston,  in  urging  upon  him  the  making  of  the  Clayton- 
Bulwer  Treaty,  this: 

The  United  States  sought  no  exclusive  privilege  or  preferential  right 
of  any  kind  in  regard  to  the  proposed  communication,  and  their  sincere 
wish,  if  it  should  be  found  practicable,  was  to  see  it  dedicated  to  the 
conunon  use  of  all  nations  on  the  most  liberal  terms  and  a  footing  of 
perfect  equaUty  for  all. 

That  the  United  States  would  not,  if  they  could,  obtain  any  exclusive 
right  or  privilege  in  a  great  highway  which  natiu-ally  belonged  to  all 
mankind. 

That,  sir,  was  the  spirit  of  the  Clayton-Bulwer  convention. 
That  was  what  the  United  States  asked  Great  Britain  to 
agree  upon.  That  self-denying  declaration  underlay  and 
permeated  and  found  expression  in  the  tenns  of  the  Clayton- 
Bulwer  convention.  And  upon  that  representation.  Great 
Britain  in  that  convention  relinquished  her  coign  of  vantage 
which  she  herself  had  for  the  benefit  of  her  great  North 
American  empire  for  the  control  of  the  canal  across  the 
Isthmus. 

Mr.  Cummins.    Mr.  President  — 

The  President  pro  tempore.  Does  the  Senator  from  New 
York  yield  to  the  Senator  from  Iowa  ? 

Mr.  Root.    I  do,  but  — 

Mr.  Cummins.  I  will  ask  the  Senator  from  New  York 
whether  he  prefers  that  there  shall  be  no  interruptions  ?  If 
he  does,  I  shall  not  ask  any  question. 

Mr.  Root.  Mr.  President,  I  should  prefer  it,  because 
what  I  have  to  say  involves  establishing  the  relation  between 


216  INTERNATIONAL  SUBJECTS 

a  considerable  number  of  acts  and  instruments,  and  inter- 
ruptions naturally  would  destroy  the  continuity  of  my 
statement. 

Mr.  Cummins.  The  question  I  was  about  to  ask  was  purely 
a  historic  one. 

Mr.  Root.    I  shall  be  very  glad  to  answer  the  Senator. 

Mr.  Cummins.  The  Senator  has  stated  \hat  at  the  time  of 
the  Clayton-Bulwer  Treaty  we  were  excluded  from  the  Mos- 
quito Coast  by  the  protectorate  exercised  by  Great  Britain 
over  that  coast.  My  question  is  this:  Had  we  not  at  that 
time  a  treaty  with  New  Granada  that  gave  us  equal  or  greater 
rights  upon  the  Isthmus  of  Panama  than  were  claimed  even 
by  Great  Britain  over  the  Mosquito  Coast  ? 

Mr.  Root.  Mr.  President,  we  had  the  treaty  of  1846  with 
New  Granada,  under  which  we  undertook  to  protect  any 
railway  or  canal  across  the  Isthmus.  But  that  did  not  apply 
to  the  Nicaragua  route,  which  was  then  supposed  to  be  the 
most  available  route  for  a  canal. 

Mr.  Cummins.  I  quite  agree  with  the  Senator  about  that. 
I  only  wanted  it  to  appear  in  the  course  of  the  argument  that 
we  were  then  under  no  disability  so  far  as  concerned  building 
a  canal  across  the  Isthmus  of  Panama. 

Mr.  Root.  We  were  under  a  disability  so  far  as  concerned 
building  a  canal  by  the  Nicaragua  route,  which  was  regarded 
as  the  available  route  until  the  discussion  in  the  Senate  after 
1901,  in  which  Senator  Spooner  and  Senator  Hanna  practi- 
cally changed  the  judgment  of  the  Senate  with  regard  to 
what  was  the  proper  route  to  take.  And  in  the  treaty  of 
1850,  so  anxious  were  we  to  secure  freedom  from  the  claims 
of  Great  Britain  on  the  eastern  end  of  the  Nicaragua  route 
that,  as  I  have  read,  we  agreed  that  the  same  contract  should 
apply  not  merely  to  the  Nicaragua  route  but  to  the  whole  of 
the  Isthmus.  So  that  from  that  time  on  the  whole  Isthmus 
was  impressed  by  the  same  obligations  which  were  impressed 


PANAMA  CANAL  TOLLS  217 

upon  the  Nicaragua  route,  and  whatever  rights  we  had  under 
our  treaty  of  1846  with  New  Granada,  we  were  thenceforth 
bound  to  exercise  with  due  regard  and  subordination  to  the 
provisions  of  the  Clayton-Bulwer  Treaty. 

Mr.  President,  after  the  lapse  of  some  thirty  years,  during 
the  early  part  of  which  we  were  strenuously  insisting  upon 
the  observance  by  Great  Britain  of  her  obligations  under  the 
Clayton-Bulwer  Treaty  and  during  the  latter  part  of  which 
we  were  beginning  to  be  restive  under  our  obligations  by  rea- 
son of  that  treaty,  we  undertook  to  secure  a  modification  of 
it  from  Great  Britain.  In  the  course  of  that  undertaking, 
there  was  much  discussion  and  some  difference  of  opinion  as 
to  the  continued  obligations  of  the  treaty.  But  I  think  that 
was  finally  put  at  rest  by  the  decision  of  Secretary  Olney  in 
the  memorandum  upon  the  subject  made  by  him  in  the  year 
1896.    In  that  memorandum  he  said: 

Under  these  circumstances,  up>on  every  principle  which  governs  the 
relation  to  each  other,  either  of  nations  or  of  individuals,  the  United 
States  is  completely  estopped  from  denying  that  the  treaty  is  in  full  force 
and  vigor. 

If  changed  conditions  now  make  stipulations,  which  were  once  deemed 
advantageous,  either  inapplicable  or  injurious,  the  true  remedy  is  not  in 
ingenious  attempts  to  deny  the  existence  of  the  treaty  or  to  explain  away 
its  provisions,  but  in  a  direct  and  straightforward  appUcation  to  Great 
Britain  for  a  reconsideration  of  the  whole  matter. 

We  did  apply  to  Great  Britain  for  a  reconsideration  of  the 
whole  matter,  and  the  result  of  the  application  was  the  Hay- 
Pauncefote  Treaty.  That  treaty  came  before  the  Senate  in 
two  forms:  first,  in  the  form  of  an  instrument  signed  on 
February  5,  1900,  which  was  amended  by  the  Senate;  and, 
second,  in  the  form  of  an  instrument  signed  on  November  18, 
1901,  which  contained  the  greater  part  of  the  provisions  of 
the  earlier  instrument,  but  somewhat  modified  or  varied  the 
amendments  which  had  been  made  by  the  Senate  to  that 
earlier  instrument. 


218  INTERNATIONAL  SUBJECTS 

It  is  really  but  one  process  by  which  the  paper  sent  to  the 
Senate  in  February,  1900,  passed  through  a  course  of  amend- 
ment; first,  at  the  hands  of  the  Senate,  and  then  at  the  hands 
of  the  negotiators  between  Great  Britain  and  the  United 
States,  with  the  subsequent  approval  of  the  Senate.  In  both 
the  first  form  and  the  last  of  this  treaty,  the  preamble  pro- 
vides for  preserving  the  provisions  of  article  eight  of  the 
Clayton-Bulwer  Treaty.  Both  forms  provide  for  the  con- 
struction of  the  canal  under  the  auspices  of  the  United 
States  alone,  instead  of  its  construction  under  the  auspices 
of  both  countries. 

Both  forms  of  that  treaty  provide  that  the  canal  might 
be  — 

constructed  under  the  auspices  of  the  Government  of  the  United  States, 
either  directly  at  its  own  cost  or  by  gift  or  loan  of  money  to  individuals  or 
corporations  or  through  subscription  to  or  purchase  of  stock  or  shares  — 

that  being  substituted  for  the  provisions  of  the  Clayton- 
Bulwer  Treaty  under  which  both  countries  were  to  be 
patrons  of  the  enterprise. 

Under  both  forms  it  was  further  provided  that  — 

Subject  to  the  provisions  of  the  present  convention,  the  said  Govern- 
ment— 

the  United  States  — 

shall  have  and  enjoy  all  the  rights  incident  to  such  construction,  as  well 
as  the  exclusive  right  of  providing  for  the  regulation  and  management  of 
the  canal. 

That  provision,  however,  for  the  exclusive  patronage  of  the 
United  States  was  subject  to  the  initial  provision  that  the 
modification  or  change  from  the  Clayton-Bulwer  Treaty  was 
to  be  for  the  construction  of  such  canal  under  the  auspices  of 
the  Government  of  the  United  States,  without  impairing  the 
general  principle  of  neutralization  established  in  article  eight 
of  that  convention. 


PANAMA  CANAL  TOLLS  219 

Then  the  treaty  as  it  was  finally  agreed  to  provides  that  the 
United  States  "  adopt,  as  the  basis  of  such  neutralization  of 
such  ship  canal,"  the  following  rules,  substantially  as  em- 
bodied in  the  convention  "  of  Constantinople,  signed  October 
28,  1888,"  for  the  free  navigation  of  the  Suez  Maritime 
Canal;  that  is  to  say: 

First.  The  canal  shall  be  free  and  open  ...  to  the  vessels 
of  commerce  and  of  war  of  all  nations  "  observing  these  rules 
on  terms  of  entire  equality,  so  that  there  shall  be  no  discrimi- 
nation against  any  nation  or  its  citizens  or  subjects  in  respect 
to  the  conditions  or  charges  of  traffic,  or  otherwise."  Such 
conditions  and  charges  of  traffic  shall  be  just  and  equitable. 

Then  follow  rules  relating  to  blockade  and  vessels  of  war, 
the  embarkation  and  disembarkation  of  troops,  and  the  ex- 
tension of  the  provisions  to  the  waters  adjacent  to  the  canal. 

Now,  Mr.  President,  that  rule  must,  of  course,  be  read  in 
connection  with  the  provision  for  the  preservation  of  the 
principle  of  neutralization  estabUshed  in  article  eight  of  the 
Clayton-Bulwer  convention. 

Let  me  take  yoiu*  minds  back  again  to  article  eight  of  the 
Clayton-Bulwer  convention,  consistently  with  which  we  are 
bound  to  construe  the  rule  established  by  the  Hay-Paunce- 
fote  convention.  The  principle  of  neutralization  provided 
for  by  the  eighth  article  is  neutralization  upon  terms  of 
absolute  equality  both  between  the  United  States  and  Great 
Britain  and  between  the  United  States  and  all  other  powers. 

It  is  always  understood  — 
says  the  eighth  article  — 

by  the  United  States  and  Great  Britain  that  the  parties  constructing  or 
owning  the  same  — 

that  is,  the  canal  — 

shall  imjKJse  no  other  charges  or  conditions  of  traflBc  thereupon  than  the 
aforesaid  Governments  shall  approve  of  as  just  and  equitable,  and  that 
the  same  canals  or  railways,  being  open  to  the  citizens  and  subjects  of  the 


9i0  INTERNATIONAL  SUBJECTS 

United  States  and  Great  Britain  on  equal  terms,  shall  also  be  open  on 
like  terms  to  the  citizens  and  subjects  of  every  other  State  which  is  willing 
to  grant  thereto  such  protection  as  the  United  States  and  Great  Britain 
engage  to  aflFord. 

Now,  we  are  not  at  liberty  to  put  any  construction  upon 
the  Hay-Pauncefote  Treaty  which  violates  that  controlling 
declaration  of  absolute  equality  between  the  citizens  and 
subjects  of  Great  Britain  and  the  United  States. 

Mr.  President,  when  the  Hay-Pauncefote  convention  was 
ratified  by  the  Senate,  it  was  in  full  view  of  this  controlHng 
principle,  in  accordance  with  which  their  act  must  be  con- 
strued; for  Senator  Davis,  in  his  report  from  the  Committee 
on  Foreign  Relations,  to  which  I  have  already  referred  — 

Mr.  McCuMBER.    On  the  treaty  in  its  first  form. 

Mr.  Root.  Yes;  the  report  on  the  treaty  in  its  first  form. 
Mr.  Davis  said,  after  referring  to  the  Suez  convention  of 
1888: 

The  United  States  cannot  take  an  attitude  of  opposition  to  the  prin- 
ciples of  the  great  act  of  October  28,  1888,  without  discrediting  the  official 
declarations  of  our  Government  for  fifty  years  on  the  neutrality  of  an 
isthmian  canal  and  its  equal  use  by  all  nations  without  discrimination. 

To  set  up  the  selfish  motive  of  gain  by  establishing  a  monopoly  of  a 
highway  that  must  derive  its  income  from  the  patronage  of  all  maritime 
countries  would  be  imworthy  of  the  United  States  if  we  owned  the  country 
through  which  the  canal  is  to  be  built. 

But  the  location  of  the  canal  belongs  to  other  governments,  from  whom 
we  must  obtain  any  right  to  construct  a  canal  on  their  territory,  and  it  is 
not  unreasonable,  if  the  question  was  new  and  was  not  involved  in  a  sub- 
sisting treaty  with  Great  Britain,  that  she  should  question  the  right  of 
even  Nicaragua  and  Costa  Rica  to  grant  to  our  ships  of  commerce  and  of 
war  extraordinary  privileges  of  transit  through  the  canal. 

I  shall  revert  to  that  principle  declared  by  Senator  Davis.  I 
continue  the  quotation: 

It  is  not  reasonable  to  suppjose  that  Nicaragua  and  Costa  Rica  would 
grant  to  the  United  States  the  exclusive  control  of  a  canal  through  those 
States  on  terms  less  generous  to  the  other  maritime  nations  than  those 
prescribed  in  the  great  act  of  October  28,  1888,  or  if  we  could  compel 


PANAMA  CANAL  TOLLS  221 

them  to  give  us  such  advantages  over  other  nations  it  would  not  be 
creditable  to  our  country  to  accept  them. 

That  our  Government  or  our  people  will  furnish  the  money  to  build 
the  canal  presents  the  single  question  whether  it  is  profitable  to  do  so. 
If  the  canal,  as  property,  is  worth  more  than  its  cost,  we  are  not  called 
on  to  divide  the  profits  with  other  nations.  If  it  is  worth  less  and  we  are 
compelled  by  national  necessities  to  build  the  canal,  we  have  no  right  to 
call  on  other  nations  to  make  up  the  loss  to  us.  In  any  view,  it  is  a  ven- 
ttire  that  we  will  enter  upon  if  it  is  to  our  interest,  and  if  it  is  otherwise 
we  will  withdraw  from  its  further  consideration. 

The  Suez  Canal  makes  no  discrimination  in  its  tolls  in  favor  of  its  stock- 
holders, and,  taking  its  profits  or  the  half  of  them  as  our  basis  of  calcula- 
tion, we  will  never  find  it  necessary  to  differentiate  our  rates  of  toll  in 
favor  of  oiu"  own  people  in  order  to  seciu-e  a  very  great  profit  on  the  invest- 
ment. 

Mr.  President,  in  view  of  that  declaration  of  principle,  in 
the  face  of  that  declaration,  the  United  States  cannot  afford 
to  take  a  position  at  variance  with  the  rule  of  universal 
equality  established  in  the  Suez  Canal  convention  —  equality 
as  to  every  stockholder  and  all  non-stockholders,  equality  as 
to  every  nation  whether  in  possession  or  out  of  possession. 
In  the  face  of  that  declaration,  the  United  States  cannot 
afford  to  take  any  other  position  than  upon  the  rule  of  uni- 
versal equality  of  the  Suez  Canal  convention,  and  upon  the 
further  declaration  that  the  country  owning  the  territory 
through  which  this  canal  was  to  be  built  would  not  and 
ought  not  to  give  any  special  advantage  or  preference  to  the 
United  States  as  compared  with  all  the  other  nations  of  the 
earth.  In  view  of  that  report,  the  Senate  rejected  the  amend- 
ment which  was  offered  by  Senator  Bard,  of  California, 
providing  for  preference  to  the  coastwise  trade  of  the  United 
States.    This  is  the  amendment  which  was  proposed: 

The  United  States  reserves  the  right  in  the  regulation  and  management 
of  the  canal  to  discriminate  in  resf)ect  of  the  charges  of  traflSc  in  favor  of 
vessels  of  its  own  citizens  engaged  in  the  coastwise  trade. 

I  say,  the  Senate  rejected  that  amendment  upon  this  re- 
pK)rt,  which  declared  the  rule  of  universal  equality  without 


9S&t  INTERNATIONAL  SUBJECTS 

any  preference  or  discrimination  in  favor  of  the  United  States 
as  being  the  meaning  of  the  treaty  and  the  necessary  meaning 
of  the  treaty. 

There  was  still  more  before  the  Senate,  there  was  still  more 
before  the  country,  to  fix  the  meaning  of  the  treaty.  I  have 
read  the  representations  that  were  made,  the  solenm  declara- 
tions made  by  the  United  States  to  Great  Britain  establishing 
the  rule  of  absolute  equality  without  discrimination  in  favor 
of  the  United  States  or  its  citizens,  to  induce  Great  Britain  to 
enter  into  the  Clayton-Bulwer  Treaty. 

Now  let  me  read  the  declaration  made  to  Great  Britain  to 
induce  her  to  modify  the  Clayton-Bulwer  Treaty  and  give  up 
her  right  to  joint  control  of  the  canal  and  put  in  our  hands  the 
sole  power  to  construct  it  or  patronize  it  or  control  it. 

Mr.  Blaine  said  in  his  instructions  to  Mr.  Lowell  on  June 

24,  1881,  directing  Mr.  Lowell  to  propose  to  Great  Britain 

the  modification  of  the  Clayton-Bulwer  Treaty  —  I  read  his 

words: 

The  United  States  recognizes  a  proper  guarantee  of  neutrality  as  essen- 
tial to  the  construction  and  successfid  operation  of  any  highway  across 
the  Isthmus  of  Panama,  and  in  the  last  generation  every  step  was  taken 
by  this  Government  that  it  deemed  requisite  in  the  premises.  The  neces- 
sity was  foreseen  and  abundantly  provided  for  long  in  advance  of  any 
possible  call  for  the  actual  exercise  of  power.  .  .  .  Nor,  in  time  of  peace, 
does  the  United  States  seek  to  have  any  exclusive  privileges  accorded  to  Ameri- 
can ships  in  respect  to  precedence  or  tolls  through  an  interoceanic  canal  any 
more  than  it  has  sought  like  privileges  for  American  goods  in  transit  over  the 
Panama  RaUtoay,  under  the  exdusive  control  of  an  American  corporation. 
The  extent  of  the  privileges  of  American  citizens  and  ships  is  measureable 
under  the  treaty  of  1846  by  those  of  Colombian  citizens  and  ships.  It 
wovld  be  our  earnest  desire  and  expectation  to  see  the  iwrld's  peaceful  com- 
merce enjoy  the  same  just,  liberal,  and  rational  treatm,ent. 

Secretary  Cass  had  already  said  to  Great  Britain  in  1857: 

The  United  States,  as  I  have  before  had  occasion  to  assure  your  Lord- 
ship, demand  no  exclusive  privileges  in  these  passages,  but  will  always  exert 
their  influence  to  secure  their  free  and  unrestricted  benefits,  both  in  peace  and 
tear,  to  the  commerce  of  the  world. 


PANAMA  CANAL  TOLLS  223 

Mr.  President,  it  was  upon  that  declaration,  upon  that  self- 
denying  declaration,  upon  that  solemn  assurance,  that  the 
United  States  sought  not  and  would  not  have  any  preference 
for  her  own  citizens  over  the  subjects  and  citizens  of  other 
countries,  that  Great  Britain  abandoned  her  rights  under  the 
Clayton-Bulwer  Treaty  and  entered  into  the  Hay-Pauncef ote 
Treaty,  with  the  clause  continuing  the  principles  of  clause 
eight,  which  embodied  these  same  declarations,  and  the 
clause  establishing  the  rule  of  equality,  taken  from  the  Suez 
Canal  convention.  We  are  not  at  liberty  to  give  any  other 
construction  to  the  Hay-Pauncefote  Treaty  than  the  con- 
struction which  is  consistent  with  that  declaration. 

Mr.  President,  these  declarations,  made  specifically  and 
directly  to  secure  the  making  of  these  treaties,  do  not  stand 
alone.  For  a  longer  period  than  the  oldest  Senator  has  lived, 
the  United  States  has  been  from  time  to  time  making  open 
and  public  declarations  of  her  disinterestedness,  her  altruism, 
her  purposes  for  the  benefit  of  mankind,  her  freedom  from 
desire  or  willingness  to  secure  special  and  peculiar  advantage 
in  respect  of  transit  across  the  Isthmus.  In  1826,  Mr.  Clay, 
then  Secretary  of  State  in  the  Cabinet  of  John  Quincy  Adams, 
said,  in  his  instructions  to  the  delegates  to  the  Panama 
Congress  of  that  year: 

If  a  canal  across  the  Isthmus  be  opened  so  as  to  admit  of  the  passage 
of  sea  vessels  from  ocean  to  ocean,  the  benefit  of  it  ought  not  to  be  exclu- 
sively appropriated  to  any  one  nation,  but  should  be  extended  to  all  parts 
of  the  globe  upon  the  payment  of  a  just  compensation  for  reasonable  tolls. 

Mr.  Cleveland,  in  his  annual  message  of  1885,  said: 

The  lapse  of  years  has  abundantly  confirmed  the  wisdom  and  foresight 
of  those  earlier  administrations  which,  long  before  the  conditions  of  mari- 
time intercourse  were  changed  and  enlarged  by  the  progress  of  the  age, 
proclaimed  the  vital  need  of  interoceanic  transit  across  the  American 
Isthmus  and  consecrated  it  in  advance  to  the  common  use  of  mankind 
by  their  positive  declarations  and  through  the  formal  obligations  of 
treaties.    Toward  such  realization  the  efforts  of  my  administration  will  be 


224  INTERNATIONAL  SUBJECTS 

applied,  ever  bearing  in  mind  the  principles  on  which  it  must  rest  and  which 
were  declared  in  no  imcertain  tones  by  Mr.  Cass,  who,  while  Secretary  of 
State  in  1858,  announced  that  "  What  the  United  States  want  in  Central 
America  next  to  the  happiness  of  its  people  is  the  security  and  neutrality 
of  the  interoceanic  routes  which  lead  through  it." 

By  public  declarations,  by  the  solemn  asseverations  of  our 
treaties  with  Colombia  in  1846,  with  Great  Britain  in  1850, 
our  treaties  with  Nicaragua,  our  treaty  with  Great  Britain  in 
1901,  our  treaty  with  Panama  in  1903,  we  have  presented  to 
the  world  the  most  unequivocal  guaranty  of  disinterested 
action  for  the  common  benefit  of  mankind  and  not  for  our 
selfish  advantage. 

In  the  message  which  was  sent  to  Congress  by  President 

Roosevelt  on  January  4,  1904,  explaining  the  course  of  this 

Government  regarding  the  revolution  in  Panama  and  the 

making  of  the  treaty  by  which  we  acquired  all  the  title  that 

we  have  upon  the  Isthmus,  President  Roosevelt  said: 

If  ever  a  Government  could  be  said  to  have  received  a  mandate  from 
civilization  to  eflfect  an  object  the  accomplishment  of  which  was  demanded 
in  the  interest  of  mankind,  the  United  States  holds  that  position  with 
regard  to  the  interoceanic  canal. 

Mr.  President,  there  has  been  much  discussion  for  many 
years  among  authorities  upon  international  law,  as  to 
whether  artificial  canals  for  the  convenience  of  commerce 
did  not  partake  of  the  character  of  natural  passageways  to 
such  a  degree  that,  by  the  rules  of  international  law,  equality 
must  be  observed  in  the  treatment  of  mankind  by  the  nation 
which  has  possession  and  control.  Many  very  high  authori- 
ties have  asserted  that  that  rule  applies  to  the  Panama  Canal 
even  without  a  treaty.  We  base  our  title  upon  the  right  of 
mankind  in  the  Isthmus,  treaty  or  no  treaty.  We  have  long 
asserted,  beginning  with  Secretary  Cass,  that  the  nations  of 
Central  America  had  no  right  to  debar  the  world  from  its 
right  of  passage  across  the  Isthmus.  Upon  that  view,  in  the 
words  which  I  have  quoted  from  President  Roosevelt's  mes- 


PANAMA  CANAL  TOLLS  225 

sage  to  Congress,  we  base  the  justice  of  our  entire  action  upon 
the  Isthmus  which  resulted  in  our  having  the  Canal  Zone. 
We  could  not  have  taken  it  for  our  selfish  interest;  we  could 
not  have  taken  it  for  the  purpose  of  securing  an  advantage  to 
the  people  of  the  United  States  over  the  other  peoples  of  the 
world.  It  was  only  because  civilization  had  its  rights  to  pas- 
sage across  the  Isthmus,  and  because  we  made  ourselves  the 
mandatory  of  civilization  to  assert  those  rights,  that  we  are 
entitled  to  be  there  at  all.  On  the  principles  which  imderlie 
our  action  and  upon  all  the  declarations  that  we  have  made 
for  more  than  half  a  century,  as  well  as  upon  the  express 
and  positive  stipulations  of  our  treaties,  we  are  forbidden 
to  say  we  have  taken  the  custody  of  the  Canal  Zone  to 
give  oiu"selves  any  right  of  preference  over  the  other  civil- 
ized nations  of  the  world,  beyond  those  rights  which  go 
to  the  owner  of  a  canal  to  have  the  tolls  that  are  charged 
for  passage. 

Well,  Mr.  President,  asserting  that  we  were  acting  for  the 
coromon  benefit  of  mankind,  willing  to  accept  no  preferential 
right  of  our  own,  just  as  we  asserted  it  to  secure  the  Clayton- 
Bulwer  Treaty,  just  as  we  asserted  it  to  secure  the  Hay- 
Pauncefote  Treaty,  when  we  had  recognized  the  republic  of 
Panama,  we  made  a  treaty  with  her  on  November  18,  1903. 
I  ask  your  attention  now  to  the  provisions  of  that  treaty.  In 
that  treaty  both  Panama  and  the  United  States  recognize  the 
fact  that  the  United  States  was  acting,  not  for  its  own  special 
and  selfish  interest,  but  in  the  interest  of  mankind. 

The  suggestion  has  been  made  that  we  are  relieved  from 
the  obhgations  of  our  treaties  with  Great  Britain  because  the 
Canal  Zone  is  our  territory.  It  is  said  that,  because  it  has 
become  ours,  we  are  entitled  to  build  the  canal  on  our  own 
territory  and  do  what  we  please  with  it.  Nothing  can  be 
further  from  the  fact.  It  b  not  our  territory,  except  in  trust. 
Article  two  of  the  treaty  with  Panama  provides: 


226  INTERNATIONAL  SUBJECTS 

The  republic  of  Panama  grants  to  the  United  States  in  perpetuity  the 
use,  occupation,  and  control  of  a  zone  of  land  and  land  under  water  for 
the  construction,  maintenance,  operation,  sanitation,  and  protection  of 
said  canal  — 

and  for  no  other  purpose  — 

of  the  width  of  ten  miles  extending  to  the  distance  of  five  miles  on  each 
side  of  the  center  line  of  the  route  of  the  canal  to  be  constructed.  .  .  . 

The  repubUc  of  Panama  further  grants  to  the  United  States  in  per- 
petuity the  use,  occupation,  and  control  of  any  other  lands  and  waters 
outside  of  the  zone  above  described  which  may  be  necessary  and  conven- 
ient for  the  construction,  maintenance,  operation,  sanitation,  and  protec- 
tion of  the  said  canal  or  of  any  auxiUary  canals  or  other  works  necessary 
and  convenient  for  the  construction,  maintenance,  operation,  sanitation, 
and  protection  of  the  said  enterprise. 

Article  three  provides: 

The  repubUc  of  Panama  grants  to  the  United  States  all  the  rights, 
power,  and  authority  within  the  zone  mentioned  and  described  in  article  2 
of  this  agreement  — 

from  which  I  have  just  read  — 

and  within  the  limits  of  all  auxiliary  lands  and  waters  mentioned  and 
described  in  said  article  2  which  the  United  States  would  possess  and 
exercise  if  it  were  the  sovereign  of  the  territory  within  which  said  lands 
and  waters  are  located  to  the  entire  exclusion  of  the  exercise  by  the 
repubUc  of  Panama  of  any  such  sovereign  rights,  power,  or  authority. 

Article  five  provides: 

The  republic  of  Panama  grants  to  the  United  States  in  perpetuity  a 
monopoly  for  the  construction,  maintenance,  and  operation  of  any  system 
of  communication  by  means  of  canal  or  railroad  across  its  territory  be- 
tween the  Caribbean  Sea  and  the  Pacific  Ocean. 

I  now  read  from  article  eighteen: 

The  canal,  when  constructed,  and  the  entrances  thereto  shall  be  neutral 
in  perpetuity,  and  shall  be  opened  upon  the  terms  provided  for  by  section 
1  of  article  3  of,  and  in  conformity  with  all  the  stipulations  of,  the  treaty 
entered  into  by  the  Governments  of  the  United  States  and  Great  Britain 
on  November  18,  1901. 

So,  Mr.  President,  far  from  our  being  relieved  of  the  obliga- 
tions of  the  treaty  with  Great  Britain  by  reason  of  the  title 


PANAMA  CANAL  TOLLS  227 

that  we  have  obtained  to  the  Canal  Zone,  we  have  taken  that 

title  impressed  with  a  solemn  trust.    We  have  taken  it  for  no 

purpose  except  the  construction  and  maintenance  of  a  canal 

in  accordance  with  all  the  stipulations  of  our  treaty  with 

Great  Britain.     We  cannot  be  false  to  those  stipulations 

without  adding  to  the  breach  of  contract  a  breach  of  the  trust 

which  we  have  assumed,  according  to  our  own  declarations, 

for  the  benefit  of  mankind,  as  the  mandatory  of  civilization. 

In  anticipation  of  the  plainly-to-be-foreseen  contingency  of 

our  having  to  acquire  some  kind  of  title  in  order  to  construct 

the  canal,  the  Hay-Pauncefote  Treaty  provided  expressly  in 

article  four: 

It  is  agreed  that  no  change  of  territorial  sovereignty  or  of  international 
relations  of  the  country  or  comitries  traversed  by  the  beforementioned 
canal  shall  aflfect  the  general  principle  of  neutralization  or  the  obUgation 
of  the  high  contracting  parties  under  the  present  treaty. 

So  you  will  see  that  the  treaty  with  Great  Britain  expressly 
provides  that  its  obligations  shall  continue,  no  matter  what 
title  we  get  to  the  Canal  Zone;  and  the  treaty  by  which  we 
get  the  title  expressly  impresses  upon  it  as  a  trust  the  obHga- 
tions  of  the  treaty  with  Great  Britain.  How  idle  it  is  to  say 
that  because  the  Canal  Zone  is  ours,  we  can  do  with  it  what 
we  please! 

There  is  another  suggestion  made  regarding  the  obligations 
of  this  treaty,  and  that  is  that  matters  relating  to  the  coasting 
trade  are  matters  of  special  domestic  concern,  and  that  no- 
body else  has  any  right  to  say  anything  about  them.  We  did 
not  think  so  when  we  were  deaUng  with  the  Canadian  canals. 
But  that  may  not  be  conclusive  as  to  rights  under  this  treaty. 
Let  us  examine  it  for  a  moment. 

It  is  rather  poverty  of  language  than  a  genius  for  defini- 
tion which  leads  us  to  call  a  voyage  from  New  York  to  San 
Francisco,  passing  along  countries  thousands  of  miles  away 
from  our  territory,  "  coasting  trade,"  or  to  call  a  voyage 


*«8  INTERNATIONAL  SUBJECTS 

from  New  York  to  Manila,  on  the  other  side  of  the  world, 
"  coasting  trade."  When  we  use  the  term  "  coasting  trade," 
what  we  really  mean  is  that  under  our  navigation  laws  a  voy- 
age which  begins  and  ends  at  an  American  port  has  certain 
privileges  and  immunities  and  rights,  and  it  is  necessarily  in 
that  sense  that  the  term  is  used  in  this  statute.  It  must  be 
construed  in  accordance  with  our  statutes. 

Sir,  I  do  not  for  a  moment  dispute  that  ordinary  coasting 
trade  is  a  special  kind  of  trade  that  is  entitled  to  be  treated 
differently  from  trade  to  or  from  distant  foreign  points.  It  is 
ordinarily  neighborhood  trade,  from  port  to  port,  by  which 
the  people  of  a  country  carry  on  their  intercommunication, 
often  by  small  vessels,  poor  vessels,  carrying  cargoes  of  sHght 
value.  It  would  be  quite  impracticable  to  impose  upon  trade 
of  that  kind  the  same  kind  of  burdens  which  great  ocean- 
going steamers,  trading  to  the  farthest  parts  of  the  earth,  can 
well  bear.  We  make  that  distinction.  Indeed,  Great  Britain 
herself  makes  it,  although  Great  Britain  admits  all  the  world 
to  her  coasting  trade.  But  it  is  by  quite  a  different  basis  of 
classification  —  that  is,  the  statutory  basis  —  that  we  call  a 
voyage  from  the  eastern  coast  of  the  United  States  to  the 
Orient  a  coasting  voyage,  because  it  begins  and  ends  in  an 
American  port. 

This  is  a  special,  peculiar  kind  of  trade  which  passes 
through  the  Panama  Canal.  You  may  call  it  "  coasting 
trade,"  but  it  is  unlike  any  other  coasting  trade.  It  is 
special  and  peculiar  to  itself. 

Grant  that  we  are  entitled  to  fix  a  different  rate  of  tolls  for 
that  class  of  trade  from  that  which  would  be  fixed  for  other 
classes  of  trade.  Ah,  yes;  but  Great  Britain  has  her  coasting 
trade  through  the  canal  imder  the  same  definition,  and 
Mexico  has  her  coasting  trade,  and  Germany  has  her  coasting 
trade,  and  Colombia  has  her  coasting  trade,  in  the  same  sense 
that  we  have.   You  are  not  at  Hberty  to  discriminate  in  fixing 


PANAMA  CANAL  TOLLS  229 

tolls  between  a  voyage  from  Portland,  Maine,  to  Portland, 
Oregon,  by  an  American  ship,  and  a  voyage  from  Halifax  to 
Victoria  in  a  British  ship,  or  a  voyage  from  Vera  Cruz  to 
Acapulco  in  a  Mexican  ship,  because  when  you  do  so  you 
discriminate,  not  between  coasting  trade  and  other  trade,  but 
between  American  ships  and  British  ships,  Mexican  ships,  or 
Colombian  ships.  That  is  a  violation  of  the  rule  of  equality 
which  we  have  solemnly  adopted,  and  asserted  and  reas- 
serted, and  to  which  we  are  bound  by  every  consideration 
of  honor  and  good  faith.  Whatever  this  treaty  means,  it 
means  for  that  kind  of  trade  as  well  as  for  any  other  kind  of 
trade. 

The  suggestion  has  been  made,  also,  that  we  should  not 
consider  that  the  provision  in  this  treaty  about  equality  as  to 
tolls  reaUy  means  what  it  says,  because  it  is  not  to  be  sup- 
posed that  the  United  States  would  give  up  the  right  to  de- 
fend itself,  to  protect  its  own  territory,  to  land  its  own  troops, 
and  to  send  through  the  canal  as  it  pleases  its  own  ships  of 
war.  That  is  disposed  of  by  the  considerations  which  were 
presented  to  the  Senate  in  the  Davis  report,  to  which  I  have 
already  referred,  in  regard  to  the  Suez  convention. 

The  Suez  convention,  from  which  these  rules  of  the  Hay- 
Pauncef ote  Treaty  were  taken  almost  —  though  not  quite  — 
textually,  contained  other  provisions  which  reserved  to  Tur- 
key and  to  Egypt,  as  sovereigns  of  the  territory  through 
which  the  canal  passed  —  Egypt  as  the  sovereign  and  Tur- 
key as  the  suzerain  over  Egypt  —  all  of  the  rights  that  per- 
tained to  sovereigns  for  the  protection  of  their  own  territory. 
As  when  the  Hay-Pauncef  ote  Treaty  was  made  neither  party 
to  the  treaty  had  any  title  to  the  region  which  would  be 
traversed  by  the  canal,  no  such  clauses  could  be  introduced. 
But,  as  was  p>ointed  out,  the  rules  which  were  taken  from  the 
Suez  Canal  for  the  control  of  the  canal  management  would 
necessarily  be  subject  to  these  rights  of  sovereignty  which 


«30  INTERNATIONAL  SUBJECTS 

were  still  to  be  secured  from  the  countries  owning  the  terri- 
tory. That  is  recognized  by  the  British  Government  in  the 
note  which  has  been  sent  to  us  and  has  been  laid  before  the 
Senate,  or  is  in  the  possession  of  the  Senate,  from  the  British 
foreign  oflSce. 

In  Sir  Edward  Grey's  note  of  November  14,  1912,  he  says 
what  I  am  about  to  read.  This  is  an  explicit  disclaimer  of 
any  contention  that  the  provisions  of  the  Hay-Pauncefote 
Treaty  exclude  us  from  the  same  rights  of  protection  of  terri- 
tory which  Nicaragua  or  Colombia  or  Panama  would  have 
had  as  sovereigns,  and  which  we  succeed  to,  'pro  tanto,  by 
virtue  of  the  Panama  Canal  treaty. 

Sir  Edward  Grey  says: 

I  notice  that  in  the  course  of  the  debate  in  the  Senate  on  the  Panama 
Canal  bill  the  argument  was  used  by  one  of  the  sp>eakers  that  the  third, 
foxirth,  and  fifth  rules  embodied  in  article  3  of  the  treaty  show  that  the 
words  "  all  nations  "  cannot  include  the  United  States,  because,  if  the 
United  States  were  at  war,  it  is  imi)ossible  to  believe  that  it  could  be 
intended  to  be  debarred  by  the  treaty  from  using  its  own  territory  for 
revictualling  its  warships  or  landing  troops. 

The  same  point  may  strike  others  who  read  nothing  but  the  text  of 
the  Hay-Pauncefote  Treaty  itself,  and  I  think  it  is  therefore  worth  while 
that  I  should  briefly  show  that  this  argument  is  not  well  founded. 

I  read  this  not  as  an  argument  but  because  it  is  a  formal, 
official  disclaimer  which  is  binding. 
Sir  Edward  Grey  proceeds: 

The  Hay-Pauncefote  Treaty  of  1901  aimed  at  carrying  out  the  principle 
of  the  neutralization  of  the  Panama  Canal  by  subjecting  it  to  the  same 
regime  as  the  Suez  Canal.  Rules  3,  4,  and  5  of  article  3  of  the  treaty  are 
taken  almost  textually  from  articles  4,  5,  and  6  of  the  Suez  Canal  Con- 
vention of  1888. 

At  the  date  of  the  signatiu-e  of  the  Hay-Pauncefote  Treaty  the  territory 
on  which  the  Isthmian  Canal  was  to  be  constructed  did  not  belong  to  the 
United  States,  consequently  there  was  no  need  to  insert  in  the  draft  treaty 
provisions  corresponding  to  those  in  articles  10  and  13  of  the  Suez  Canal 
Convention,  which  preserve  the  sovereign  rights  of  Turkey  and  of  Egypt, 
and  stipulate  that  articles  4  and  5  shall  not  afiFect  the  right  of  Turkey, 
as  the  local  sovereign,  and  of  Egypt,  within  the  measure  of  her  autonomy. 


PANAMA  CANAL  TOLLS  231 

to  take  such  measures  as  may  be  necessary  for  securing  the  defense  of 
Egypt  and  the  maintenance  of  public  order,  and,  in  the  case  of  Turkey, 
the  defense  of  her  possessions  on  the  Red  Sea. 

Now  that  the  United  States  has  become  the  practical  sovereign  of  the 
canal,  His  Majesty's  Government  do  not  question  its  title  to  exercise 
belligerent  rights  for  its  protection. 

Mr.  President,  Great  Britain  has  asserted  the  construction 
of  the  Hay-Pauncefote  Treaty  of  1901,  the  arguments  for 
which  I  have  been  stating  to  the  Senate.  I  realize,  sir,  that 
I  may  be  wrong.  I  have  often  been  wrong.  I  realize  that  the 
gentlemen  who  have  taken  a  dififerent  view  regarding  the 
meaning  of  this  treaty  may  be  right.  I  do  not  think  so.  But 
their  ability  and  fairness  of  mind  would  make  it  idle  for  me 
not  to  entertain  the  possibility  that  they  are  right  and  I  am 
wrong.  Yet,  Mr.  President,  the  question  whether  they  are 
right  and  I  am  wrong  depends  upon  the  interpretation  of  the 
treaty.  It  depends  upon  the  interpretation  of  the  treaty  in 
the  light  of  all  the  declarations  that  have  been  made  by  the 
parties  to  it,  in  the  light  of  the  nature  of  the  subject-matter 
with  which  it  deals. 

Gentlemen  say  the  question  of  imposing  tolls  or  not  im- 
posing tolls  upon  our  coastwise  commerce,  is  a  matter  of  our 
concern.  Ah !  we  have  made  a  treaty  about  it.  If  the  inter- 
pretation of  the  treaty  is  as  England  claims,  then  it  is  not  a 
matter  of  om*  concern;  it  is  a  matter  of  treaty  rights  and 
duties.  But,  sir,  it  is  not  a  question  as  to  our  rights  to  remit 
tolls  to  our  commerce.  It  is  a  question  whether  we  can  im- 
pose tolls  upon  British  commerce  when  we  have  remitted 
them  from  our  own.  That  is  the  question.  Nobody  disputes 
our  rights  to  allow  oiu*  own  ships  to  go  through  the  canal 
without  paying  tolls.  What  is  disputed  is  our  right  to  charge 
tolls  against  other  ships  when  we  do  not  charge  them  against 
our  own.  That  is,  pure  and  simple,  a  question  of  interna- 
tional right  and  duty,  and  depends  upon  the  interpretation 
of  the  treaty. 


232  INTERNATIONAL  SUBJECTS 

Sir,  we  have  another  treaty,  made  between  the  United 

States  and  Great  Britain  on  April  4,  1908,  in  which  the  two 

nations  have  agreed  as  follows: 

Differences  which  may  arise  of  a  legal  nature  or  relating  to  the  inter- 
pretation of  treaties  existing  between  the  two  contracting  parties  and 
which  it  may  not  have  been  possible  to  settle  by  diplomacy,  shall  be 
referred  to  the  Permanent  Court  of  Arbitration  established  at  The 
Hague  by  the  convention  of  July  29,  1899,  provided,  nevertheless,  that 
they  do  not  affect  the  vital  interests,  the  independence,  or  the  honor 
of  the  two  contracting  states,  and  do  not  concern  the  interests  of  third 
parties. 

Of  course,  the  question  of  the  rate  of  tolls  on  the  Panama 
Canal  does  not  affect  any  nation's  vital  interests.  It  does  not 
affect  the  independence  or  the  honor  of  either  of  these  con- 
tracting states.  We  have  a  difference  relating  to  the  interpre- 
tation of  this  treaty,  and  that  is  all  there  is  to  it.  We  are 
bound,  by  this  treaty  of  arbitration,  not  to  stand  with  arro- 
gant assertion  upon  our  own  Government's  opinion  as  to  the 
interpretation  of  the  treaty,  not  to  require  that  Great  Britain 
shall  suffer  what  she  deems  injustice  by  violation  of  the 
treaty,  or  else  go  to  war.  We  are  bound  to  say,  "  We  keep 
the  faith  of  our  treaty  of  arbitration,  and  we  will  submit  the 
question  as  to  what  this  treaty  means  to  an  impartial  tribunal 
of  arbitration." 

Mr.  President,  if  we  stand  in  the  position  of  arrogant  re- 
fusal to  submit  the  questions  arising  upon  the  interpretation 
of  this  treaty  to  arbitration,  we  shall  not  only  violate  our 
solemn  obHgation,  but  we  shall  be  false  to  all  the  principles 
that  we  have  asserted  to  the  world,  and  that  we  have  urged 
upon  mankind.  We  have  been  the  apostle  of  arbitration. 
We  have  been  urging  it  upon  the  other  civiKzed  nations. 
Presidents,  secretaries  of  state,  ambassadors,  and  ministers 
—  aye,  Congresses,  the  Senate  and  the  House,  all  branches 
of  our  Government  have  committed  the  United  States  to  the 
principle  of  arbitration  irrevocably,  unequivocally,  and  we 


PANAMA  CANAL  TOLLS  2SS 

have  urged  it  in  season  and  out  of  season  on  the  rest  of 
mankind. 

Sir,  I  cannot  detain  the  Senate  by  more  than  beginning 
upon  the  expressions  that  have  come  from  our  Government 
upon  this  subject,  but  I  will  ask  your  indulgence  while  I  call 
your  attention  to  a  few  selected  from  the  others. 

On  June  9,  1874,  the  Senate  Committee  on  Foreign  Rela- 
tions reported  and  the  Senate  adopted  this  resolution: 

Resolved,  That  the  United  States  having  at  heart  the  cause  of  peace 
everywhere,  and  hoping  to  help  its  permanent  establishment  between 
nations,  hereby  recommend  the  adoption  of  arbitration  as  a  great  and 
practical  method  for  the  determination  of  international  difference,  to  be 
maintained  sincerely  and  in  good  faith,  so  that  war  may  cease  to  be 
regarded  as  a  proper  form  of  trial  between  nations. 

On  June  17,  1874,  the  Committee  on  Foreign  Affairs  of  the 

House  adopted  this  resolution: 

Whereas,  War  is  at  all  times  destructive  of  the  material  interests  of  a 
people,  demoralizing  in  its  tendencies,  and  at  variance  with  an  enlightened 
public  sentiment;  and  whereas,  differences  between  nations  shoidd  in  the 
interests  of  humanity  and  fraternity  be  adjusted,  if  possible,  by  international 
arbitration:  therefore. 

Resolved,  That  the  people  of  the  United  States  being  devoted  to  the 
policy  of  peace  with  all  mankind,  enjoining  its  blessings  and  hoping  for 
its  permanence  and  its  universal  adoption,  hereby  through  their  repre- 
sentatives in  Congress  recommend  such  arbitration  as  a  rational  substitute 
for  war;  and  they  further  recommend  to  the  treaty-making  power  of  the 
Government  to  provide,  if  practicable,  that  hereafter  in  treaties  made 
between  the  United  States  and  foreign  p>owers  war  shall  not  be  declared 
by  either  of  the  contracting  parties  against  the  other  until  efforts  shall  have 
been  made  to  adjust  all  alleged  cause  of  difference  by  impartial  arbitration. 

On  the  same  June  17,  1874,  the  Senate  adopted  this  resolu- 
tion: 

Resolved,  etc..  That  the  President  of  the  United  States  is  hereby  au- 
thbrized  and  requested  to  negotiate  with  all  civilized  powers  who  may  be 
willing  to  enter  into  such  negotiations  for  the  establishment  of  an  inter- 
national system  whereby  matters  in  dispute  between  different  Govern- 
ments agreeing  thereto  may  be  adjusted  by  arbitration,  and,  if  possible, 
without  recourse  to  war. 


«S4  INTERNATIONAL  SUBJECTS 

On  June  14,  1888,  and  again  on  February  14,  1890,  the 
Senate  and  the  House  adopted  a  concurrent  resolution  in  the 
words  which  I  now  read: 

Resolved  by  the  Senate  (the  House  of  Representatives  concurring).  That  the 
President  be,  and  is  hereby,  requested  to  invite,  from  time  to  time,  as  fit 
occasions  may  arise,  negotiations  with  any  Government  with  which  the 
United  States  has,  or  may  have,  diplomatic  relations,  to  the  end  that  any 
differences  or  disputes  arising  between  the  two  Governments  which  cannot 
be  adjusted  by  diplomatic  agency  may  be  referred  to  arbitration  and  be 
peaceably  adjusted  by  such  means. 

This  was  concurred  in  by  the  House  on  April  3,  1890. 

Mr.  President,  in  pursuance  of  those  declarations  by  both 
Houses  of  Congress,  the  Presidents  and  the  Secretaries  of 
State  and  the  diplomatic  agents  of  the  United  States,  doing 
their  bounden  duty,  have  been  urging  arbitration  upon  the 
people  of  the  worid.  Our  representatives  in  The  Hague  Con- 
ference of  1899,  and  in  The  Hague  Conference  of  1907,  and 
in  the  Pan-American  Conference  in  Washington,  and  in  the 
Pan-American  Conference  in  Mexico,  and  in  the  Pan-Ameri- 
can Conference  in  Rio  de  Janeiro,  were  instructed  to  urge 
and  did  urge  and  pledge  the  United  States  in  the  most  un- 
equivocal and  urgent  terms  to  support  the  principle  of 
arbitration  upon  all  questions  capable  of  being  submitted 
to  a  tribunal  for  a  decision. 

Under  those  instructions,  Mr.  Hay  addressed  the  people 
of  the  entire  civilized  worid  with  the  request  to  come  into 
treaties  of  arbitration  with  the  United  States.  Here  was  his 
letter.  After  quoting  from  the  resolutions  and  from  expres- 
sions by  the  President  he  said: 

Moved  by  these  views,  the  President  has  charged  me  to  instruct  you 
to  ascertain  whether  the  Government  to  which  you  are  accredited,  which 
he  has  reason  to  believe  is  equally  desirous  of  advancing  the  principle  of 
international  arbitration,  is  willing  to  conclude  with  the  Government  of 
the  United  States  an  arbitration  treaty  of  like  tenor  to  the  arrangement 
concluded  between  France  and  Great  Britain  on  October  14,  1903. 


PANAMA  CANAL  TOLLS  235 

That  was  the  origin  of  this  treaty.  The  treaties  made  by 
Mr.  Hay  were  not  satisfactory  to  the  Senate  because  of  the 
question  about  the  participation  of  the  Senate  in  the  make-up 
of  the  special  agreement  of  submission.  Mr.  Hay's  successor 
modified  that  on  conference  with  the  Committee  on  Foreign 
Relations  of  the  Senate,  and  secured  the  assent  of  the  other 
countries  of  the  world  to  the  treaty  with  that  modification. 
We  have  made  twenty-five  of  these  treaties  of  arbitration, 
covering  the  greater  part  of  the  world,  under  the  direction  of 
the  Senate  of  the  United  States  and  the  House  of  Represen- 
tatives of  the  United  States  and  in  accordance  with  the 
traditional  policy  of  the  United  States,  holding  up  to  the 
world  the  principle  of  peaceful  arbitration. 

One  of  these  treaties  is  here,  and  under  it  Great  Britain  is 
demanding  that  the  question  as  to  what  the  true  interpreta- 
tion of  our  treaty  about  the  canal  is,  shall  be  submitted  to 
decision  and  not  be  made  the  subject  of  war  or  of  submission 
to  what  she  deems  injustice  to  avoid  war. 

In  response  to  the  last  resolution  which  I  have  read,  the 
concurrent  resolution  passed  by  the  Senate  and  the  House 
requesting  the  President  to  enter  into  the  negotiations  which 
resulted  in  these  treaties  of  arbitration,  the  British  House  of 
Commons  passed  a  resolution  accepting  the  overture.  On 
July  16, 1893,  the  House  of  Commons  adopted  this  resolution: 

Resolved,  That  this  House  has  learnt  with  satisfaction  that  both  Houses 
of  the  United  States  Congress  have,  by  resolution,  requested  the  President 
to  invite  from  time  to  time,  as  fit  occasions  may  arise,  negotiations  with 
any  government  with  which  the  United  States  have  or  may  have  diplo- 
matic relations,  to  the  end  that  any  diflferences  or  disputes  arising  between 
the  two  governments  which  cannot  be  adjusted  by  diplomatic  agency  may 
be  referred  to  arbitration  and  i)eaceably  adjusted  by  such  means,  and 
that  this  House,  cordially  sympathizing  with  the  purpose  in  view,  expresses 
the  hope  that  Her  Majesty's  Government  will  lend  their  ready  cooperation 
to  the  Government  of  the  United  States  upon  the  basis  of  the  foregoing 
resolution. 

Her  Majesty's  Government  did,  and  thence  came  this  treaty. 


236  INTERNATIONAL  SUBJECTS 

Mr.  President,  what  revolting  hypocrisy  we  convict  our- 
selves of,  if  after  all  this,  the  first  time  there  comes  up  a  ques- 
tion in  which  we  have  an  interest,  the  first  time  there  comes 
up  a  question  of  difference  about  the  meaning  of  a  treaty  as 
to  which  we  fear  we  may  be  beaten  in  an  arbitration,  we  re- 
fuse to  keep  our  agreement!  Where  will  be  our  self-respect 
if  we  do  that  ?  Where  will  be  that  respect  to  which  a  great 
nation  is  entitled  from  the  other  nations  of  the  earth  ? 

I  have  read  from  what  Congress  has  said.  Let  me  read 
something  from  President  Grant's  annual  message  of  Decem- 
ber 4,  1871.  He  is  commenting  upon  the  arbitration  provi- 
sions of  the  treaty  of  1871,  in  which  Great  Britain  submitted 
to  arbitration  our  claims  against  her,  known  as  the  Alabama 
Claims,  in  which  Great  Britain  submitted  those  claims  where 
she  stood  possibly  to  lose  but  not  possibly  to  gain  anything, 
and  submitted  them  against  the  most  earnest  and  violent 
protest  of  many  of  her  own  citizens.    President  Grant  said: 

The  year  has  been  an  eventful  one  in  witnessing  two  great  nations 
speaking  one  language  and  having  one  lineage,  settling  by  peaceful  arbi- 
tration disputes  of  long  standing  and  liable  at  any  time  to  bring  those 
nations  into  costly  and  bloody  conflict.  An  example  has  been  set  which, 
if  successful  in  its  final  issue,  may  be  followed  by  other  civilized  nations 
and  finally  be  the  means  of  returning  to  productive  industry  miUions  of 
men  now  maintained  to  settle  the  disputes  of  nations  by  the  bayonet  and 
by  broadside. 

Under  the  authority  of  these  resolutions,  our  delegates 
in  the  first  Pan-American  Conference  at  Washington  secured 
the  adoption  of  this  resolution  April  18,  1890: 

Abticle  1.  The  republics  of  North,  Central,  and  South  America 
hereby  adopt  arbitration  as  a  principle  of  American  international  law  for 
the  settlement  of  the  diflferences,  disputes,  or  controversies  that  may  arise 
between  two  or  more  of  them. 

And  this: 

The  International  American  Conference  resolves  that  this  conference, 
having  reconmiended  arbitration  for  the  settlement  of  disputes  among  the 


PANAMA  CANAL  TOLLS  237 

republics  of  America,  begs  leave  to  express  the  wish  that  controversies 
between  them  and  the  nations  of  Europe  may  be  settled  in  the  same 
friendly  manner. 

It  is  further  recommended  that  the  Government  of  each  nation  herein 
represented  communicate  this  wish  to  all  friendly  powers. 

Upon  that  Mr.  Blaine,  that  most  vigorous  and  virile 
American,  in  his  address  as  the  presiding  ofl&cer  of  that  first 
Pan-American  Conference  in  Washington  said: 

If,  in  this  closing  hour,  the  Conference  had  but  one  deed  to  celebrate 
we  should  dare  call  the  world's  attention  to  the  deliberate,  confident, 
solemn  dedication  of  two  great  continents  to  peace  and  to  the  prosperity 
which  has  peace  for  its  foundation.  We  hold  up  this  new  Magna  Charta, 
which  aboUshes  war  and  substitutes  arbitration  between  the  American 
republics,  as  the  first  and  great  fruit  of  the  International  American  Con- 
ference. That  noblest  of  Americans,  the  aged  iK)et  and  philanthropist, 
Whittier,  is  the  first  to  send  his  salutation  and  his  benediction,  declaring, 
"  If  in  the  spirit  of  peace  the  American  conference  agrees  upon  a  rule  of 
arbitration  which  shall  make  war  in  this  hemisphere  well-nigh  impossible, 
its  sessions  will  prove  one  of  the  most  important  events  in  the  history  of 
the  world." 

President  Arthur  in  his  annual  message  of  December  4, 
1882,  said,  in  discussing  the  proposition  for  a  Pan-American 
Conference: 

I  am  unwilling  to  dismiss  this  subject  without  assiu-ing  you  of  my 
support  of  any  measure  the  wisdom  of  Congress  may  devise  for  the 
promotion  of  peace  on  this  continent  and  throughout  the  world,  and  I 
trust  the  time  is  nigh  when,  with  the  universal  assent  of  civilized  peoples, 
all  international  differences  shall  be  determined  without  resort  to  arms  by 
the  benignant  processes  of  arbitration. 

President  Harrison  in  his  message  of  December  3,  1889, 
said  concerning  the  Pan-American  Conference: 

But  while  the  commercial  results  which  it  is  hoped  will  foUow  this 
Conference  are  worthy  of  pursuit  and  of  the  great  interests  they  have 
excited,  it  is  believed  that  the  crowning  benefit  will  be  found  in  the  better 
securities  which  may  be  devised  for  the  maintenance  of  peace  among  all 
American  nations  and  the  settlement  of  all  contentions  by  methods  that 
a  Christian  civilization  can  approve. 


1 


238  INTERNATIONAL  SUBJECTS 

President  Cleveland,  in  his  message  of  December  4,  1893, 

said,  concerning  the  resolution  of  the  British  Parhament  of 

July  16, 1893,  which  I  have  already  read,  and  commenting  on 

the  concurrent  resolution  of  February  14  and  April  18, 1890: 

It  affords  me  signal  pleasure  to  lay  this  parliamentary  resolution  before 
the  Congress  and  to  express  my  sincere  gratification  that  the  sentiment  of 
two  great  kindred  nations  is  thus  authoritatively  manifested  in  favor  of 
the  rational  and  peaceable  settlement  of  international  quarrels  by  honor- 
able resort  to  arbitration. 

President  McKinley,  in  his  message  of  December  6,  1897, 

said: 

International  arbitration  cannot  be  omitted  from  the  list  of  subjects 
claiming  our  consideration.  Events  have  only  served  to  strengthen  the 
general  views  on  this  question  expressed  in  my  inaugural  address.  The 
best  sentiment  of  the  civilized  world  is  moving  toward  the  settlement 
of  diflFerences  between  nations  without  resorting  to  the  horrors  of  war. 
Treaties  embodying  these  humane  principles  on  broad  lines  without  in 
any  way  imperiling  our  interests  or  our  honor  shall  have  my  constant 
encouragement. 

President  Roosevelt,  in  his  message  of  December  3,  1905, 
said: 

I  earnestly  hope  that  the  Conference  — 

the  second  Hague  Conference  — 

may  be  able  to  devise  some  way  to  make  arbitration  between  nations  the 
customary  way  of  settling  international  disputes  in  all  save  a  few  classes 
of  cases,  which  should  themselves  be  sharply  defined  and  rigidly  limited 
as  the  present  governmental  and  social  development  of  the  world  will 
permit.  If  jK)ssible,  there  should  be  a  general  arbitration  treaty  negotiated 
among  all  nations  represented  at  the  Conference. 

O  Mr.  President,  are  we  Pharisees  ?  Have  we  been  insin- 
cere and  false  ?  Have  we  been  pretending  in  all  these  long 
years  of  resolution  and  declaration  and  proposal  and  urgency 
for  arbitration  ?  Are  we  ready  now  to  admit  that  our  coun- 
try, that  its  Congresses  and  its  Presidents,  have  all  been 
guilty  of  false  pretense,  of  humbug,  of  talking  to  the  gal- 
leries, of  fine  words  to  secure  applause,  and  that  the  instant 


PANAMA  CANAL  TOLLS  239 

we  have  an  interest  we  are  ready  to  falsify  every  declaration, 
every  promise,  and  every  principle  ?  But  we  must  do  that 
if  we  arrogantly  insist  that  we  alone  will  determine  upon  the 
interpretation  of  this  treaty  and  will  refuse  to  abide  by  the 
agreement  of  our  treaty  of  arbitration. 

Mr.  President,  what  is  all  this  for  ?  Is  the  game  worth  the 
candle  ?  Is  it  worth  while  to  put  ourselves  in  a  position  and 
to  remain  in  a  position,  to  maintain  which  v^e  may  be  driven 
to  repudiate  our  principles,  our  professions,  and  our  agree- 
ments for  the  purpose  of  conferring  a  money  benefit  —  not 
very  great,  not  very  important,  but  a  money  benefit  —  at  the 
expense  of  the  Treasury  of  the  United  States,  upon  the  most 
highly  and  absolutely  protected  special  industry  in  the 
United  States  ?  Is  it  worth  while  ?  We  refuse  to  help  our 
foreign  shipping,  which  is  in  competition  with  the  lower  wages 
and  the  lower  standard  of  living  of  foreign  countries,  and  we 
are  proposing  to  do  this  for  a  part  of  our  coastwise  shipping 
which  has  now  by  law  the  absolute  protection  of  a  statutory 
monopoly  and  which  needs  no  help. 

Mr.  President,  there  is  but  one  alternative  consistent  with 
self-respect.  We  must  arbitrate  the  interpretation  of  this 
treaty  or  we  must  retire  from  the  position  we  have  taken. 

O  Senators,  consider  for  a  moment  what  it  is  that  we  are 
doing.  We  all  love  our  country;  we  are  all  proud  of  its  his- 
tory; we  are  all  full  of  hope  and  courage  for  its  future;  we 
love  its  good  name;  we  desire  for  it  that  power  among  the 
nations  of  the  earth  which  will  enable  it  to  accomplish  still 
greater  things  for  civilization  than  it  has  accomplished  in  its 
noble  past.  Shall  we  make  ourselves  in  the  minds  of  the 
world  like  unto  the  man  who  in  his  own  community  is  marked 
as  astute  and  cunning  to  get  out  of  his  obligations  ?  Shall  we 
make  ourselves  like  unto  the  man  who  is  known  to  be  false 
to  his  agreements;  false  to  his  pledged  word  ?  Shall  we  have 
it  understood  the  whole  world  over  that  "  you  must  look  out 


240  INTERNATIONAL  SUBJECTS 

for  the  United  States  or  she  will  get  the  advantage  of  you  "; 
that  we  are  clever  and  cunning  to  get  the  better  of  the  other 
party  to  an  agreement,  and  that  at  the  end  — 

Mr.  Brandegee.    "  Slippery  "  woidd  be  a  better  word. 

Mr.  Root.  Yes;  I  thank  the  Senator  for  the  suggestion  — 
**  slippery.'*  Shall  we  in  our  generation  add  to  those  claims 
to  honor  and  respect  that  our  fathers  have  established  for  our 
coimtry  good  cause  that  we  shall  be  considered  slippery  ? 

It  is  worth  while,  Mr.  President,  to  be  a  citizen  of  a  great 
country,  but  size  alone  is  not  enough  to  make  a  country  great. 
A  country  must  be  great  in  its  ideals;  it  must  be  great- 
hearted; it  must  be  noble;  it  must  despise  and  reject  all 
smallness  and  meanness;  it  must  be  faithful  to  its  word;  it 
must  keep  the  faith  of  treaties;  it  must  be  faithful  to  its 
mission  of  civilization  in  order  that  it  shall  be  truly  great. 
It  is  because  we  believe  that  of  our  country  that  we  are  proud, 
aye,  that  the  alien  with  the  first  step  of  his  foot  upon  our  soil 
is  proud  to  be  a  part  of  this  great  democracy. 

Let  us  put  aside  the  idea  of  small,  petty  advantage;  let  us 
treat  this  situation  and  these  obligations  in  our  relation  to 
this  canal  in  that  large  way  which  befits  a  great  nation. 

Mr.  President,  how  sad  it  would  be  if  we  were  to  dim  the 
splendor  of  that  great  achievement  by  drawing  across  it  the 
mark  of  petty  selfishness;  if  we  were  to  diminish  and  reduce 
for  generations  to  come  the  power  and  influence  of  this  free 
repubHc  for  the  uplifting  and  the  progress  of  mankind  by 
destroying  the  respect  of  mankind  for  us !  How  sad  it  would 
be  if  you  and  I,  Senators,  were  to  make  ourselves  responsible 
for  destroying  that  bright  and  inspiring  ideal  which  has 
enabled  free  America  to  lead  the  world  in  progress  toward 
liberty  and  justice! 


PANAMA  CANAL  TOLLS 

SPEECH  IN  REPLY  IN  THE  SENATE  OF  THE  UNITED  STATES 

MAY  21,  1914 

The  Senate,  as  in  Committee  of  the  Whole,  had  vmder  consideration  the  bill 
(H.  R.  14385)  to  amend  section  5  of  an  act  to  provide  for  the  opening,  maintenance, 
protection,  and  operation  of  the  Panama  Canal  and  the  sanitation  of  the  Canal 
Zone,  approved  August  24,  1912. 

MR.  PRESIDENT,  some  time  ago  I  taxed  the  patience 
of  the  Senate  by  rather  extended  remarks  upon  the 
duty  of  the  United  States  in  regard  to  tolls  upon  the  Panama 
Canal;  and  what  I  have  to  say  now  upon  that  subject  is 
rather  in  the  way  of  reply  to  arguments  which  have  been 
made,  views  which  have  been  expressed,  and  opinions  which 
have  been  made  manifest  by  various  Senators  in  the  course 
of  the  long  debate  which  has  intervened. 

I  wish,  before  proceeding,  to  express  my  very  great  satis- 
faction with  the  character  of  the  debate  in  this  Chamber 
upon  this  subject.  The  excitement  and  fervor  of  a  false 
patriotism,  the  insolence  and  rancor  which  ill  befit  the  con- 
sideration of  a  serious  international  subject  by  a  great  people, 
but  which  have  been  injected  into  the  popular  discussion  of 
this  question  in  some  quarters,  have  found  but  little  response 
among  the  members  of  the  Senate  of  the  United  States.  The 
question  which  is  before  us  has  been  debated  with  a  sense  of 
responsibility  and  dignity.  Senators  have  argued  the  ques- 
tion as  lawyers  and  legislators  upon  its  merits.  I  address 
myself  to  a  reply  to  some  of  the  arguments  which  have  been 
made  with  a  sense  of  serene  satisfaction  in  dealing  with  a 
question  which  rests  in  the  minds  of  my  colleagues  upon 
considerations  of  right  reason  and  just  regard  for  national 
obligations  and  national  rights. 

241 


242  INTERNATIONAL  SUBJECTS 

Let  me  try,  sir,  to  state  the  question;  and  to  state  the  ques- 
tion, I  must  state  the  situation  as  it  is  presented.  The  bill 
which  is  before  the  Senate  proposes  to  repeal  certain  clauses 
of  the  Panama  Canal  Act  passed  August  24, 1912.  That  act 
was  designed  to  provide  for  the  opening,  maintenance,  pro- 
tection, and  operation  of  the  canal,  and  it  conferred  authority 
upon  the  President  in  respect  of  establishing  tolls  for  the  use 
of  the  canal  and  imposed  certain  limitations  upon  him.  Sec- 
tion five  of  the  act  authorized  the  President  to  prescribe  and 
from  time  to  time  change  the  tolls;  it  provided  "  that  no 
tolls,  when  prescribed  as  above,  shall  be  changed  "  without 
six  months'  notice;  it  provided  that  no  tolls  shall  be  levied 
upK)n  vessels  engaged  in  the  coastwise  trade  of  the  United 
States.    Further,  the  act  provided: 

When  based  up)on  net  registered  tonnage  for  ships  of  commerce,  the 
tolls  shall  not  exceed  $1.25  j)er  net  registered  ton,  nor  be  less,  other  than 
for  vessels  of  the  United  States  and  its  citizens,  than  the  estimated  pro- 
portionate cost  of  the  actual  maintenance  and  operation  of  the  canal. 

Then  it  goes  on  to  say: 

Nor  be  less  than  the  eqmvalent  of  seventy-five  cents  per  net  registered 
ton. 

So  that  the  President  is  authorized  to  impose  tolls  not  ex- 
ceeding $1.25  per  net  registered  ton,  except  for  vessels  of  the 
United  States  and  its  citizens,  and  not  less  than  seventy-five 
cents  per  net  registered  ton,  and  is  prohibited  from  imposing 
any  tolls  upon  vessels  engaged  in  the  coastwise  trade  of  the 
United  States.  He  is  required  to  impose  tolls  of  at  least 
seventy-five  cents  per  net  registered  ton  upon  all  foreign 
vessels.  He  is  authorized  to  impose  no  tolls  upon  any  Ameri- 
can vessel,  and  is  required  to  impose  no  tolls  upon  American 
vessels  engaged  in  the  coastwise  trade. 

The  President  has  issued  a  proclamation  imposing  tolls  of 
$1.20  per  net  registered  ton  upon  vessels  loaded,  a  smaller 
amount  upon  vessels  in  ballast,  and  no  tolls  upon  vessels  en- 


PANAMA  CANAL  TOLLS  243 

gaged  in  American  coastwise  trade.  A  question  has  been 
raised  by  Great  Britain  as  to  the  conformity  of  that  action 
with  a  treaty  made  between  the  United  States  and  Great 
Britain  in  1901,  known  as  the  Hay-Pauncefote  Treaty.  It  is 
claimed  that  that  treaty  requires  that  there  shall  be  no  dis- 
crimination between  the  tolls  imposed  upon  foreign  vessels 
and  the  tolls  imposed  upon  vessels  owned  by  citizens  of  the 
United  States. 

The  first  thing  which  we  naturally  do  when  such  a  question 
is  presented  is  to  inquire:  What  is  our  title  ?  What  are  the 
rights  that  we  have  ? 

Until  very  recently  the  Isthmus  of  Panama  was  not  the 
property  of  the  United  States,  and  we  had  no  rights  there 
except  certain  rights  derived  from  an  old  treaty  with  New 
Granada,  made  in  1846,  by  which  New  Granada  gave  to  the 
United  States  certain  privileges  in  any  lines  of  communica- 
tion which  might  be  constructed,  either  railroad  or  canal,  but 
gave  the  United  States  no  right  to  construct  a  canal  and  no 
property  rights  whatever. 

How  did  we  get  the  canal  upon  which  we  are  proposing  to 
exact  tolls  ?  It  was  under  a  treaty  made  with  the  republic 
of  Panama,  sometimes  called  the  Hay-Bunau-Varilla  Treaty. 
It  was  signed  at  Washington  on  November  18,  1903.  Under 
that  treaty  with  Panama,  the  owner  of  the  Isthmus,  by 
article  two  — 

granted  to  the  United  States  in  perpetuity  the  use,  occupation,  and 
control  of  a  zone  of  land  and  land  under  water,  for  the  construction, 
maintenance,  operation,  sanitation,  and  protection  of  said  canal,  of  the 
width  of  ten  miles  — 

and  so  forth.  By  article  three  it  granted  to  the  United 
States  all  the  rights,  power,  and  authority  which  the 
United  States  would  possess  and  exercise  if  it  were  the 
sovereign  of  the  territory,  to  the  exclusion  of  Panama.  In 
article  eighteen  it  provided  that  — 


244  INTERNATIONAL  SUBJECTS 

The  canal,  when  constructed,  and  the  entrances  thereto,  shall  be  neutral 
in  perpetuity  and  shall  be  opened  upon  the  terms  provided  for  by  section  1 
of  article  3  of,  and  in  conformity  with  all  the  stipulations  of,  the  treaty 
entered  into  by  the  Governments  of  the  United  States  and  Great  Britain 
on  November  18,  1901. 

That  treaty  with  Panama  is  the  basis  of  our  rights.  That 
treaty  Kes  at  the  foundation  of  any  question  that  can  be 
raised  as  to  what  we  do  with  the  canal  which  we  are  con- 
structing, because  it  is  by  that  treaty,  and  by  that  treaty 
alone,  that  we  get  our  title.  By  that  treaty  the  grant  of 
property  and  jurisdiction  upon  which  we  have  proceeded, 
upon  which  we  hold  the  canal,  is  subject  to  the  provision  that 
the  canal,  when  constructed,  and  the  entrances  thereto,  shall 
be  neutral  in  perpetuity,  and  shall  be  opened  upon  the  terms 
provided  for  by  the  treaty  between  the  United  States  and 
Great  Britain  of  November  18,  1901. 

So  the  treaty  with  Great  Britain  which  is  referred  to  here  is 
carried  into  our  title  as  a  Hmitation  upon  it. 

Let  us  turo.  to  the  treaty  with  Great  Britain  which  is  re- 
ferred to  by  Panama  in  this  grant.  That  treaty  was  signed 
at  Washington  November  18,  1901.  It  recites  that  a  con- 
vention was  considered  expedient  by  the  United  States  and 
Great  Britain  — 

to  facilitate  the  construction  of  a  ship  canal  to  connect  the  Atlantic  and 
Pacific  Oceans,  by  whatever  route  may  be  considered  expedient,  and  to 
that  end  to  remove  any  objection  which  may  arise  out  of  the  convention 
of  April  19,  1850,  commonly  called  the  Clayton-Bulwer  Treaty  .  .  . 
without  impairing  the  "  general  principle ''  of  neutralization  established 
in  article  8  of  that  convention. 

It  proceeds  to  say: 

The  canal  may  be  constructed  imder  the  auspices  of  the  Government 
of  the  United  States,  either  directly  at  its  own  cost,  or  by  gift  or  loan  of 
money  to  individuals  or  corporations,  or  through  subscription  to  or  pur- 
chase of  stock  or  shares,  and  that,  subject  to  the  provisions  of  the  present 
treaty,  the  said  Government  shall  have  and  enjoy  all  the  rights  incident 
to  such  construction,  as  well  as  the  exclusive  right  of  providing  for  the 
regulation  and  management  of  the  canal. 


PANAMA  CANAL  TOLLS  245 

It  then  proceeds  with  article  three: 

The  United  States  adopts  as  the  basis  of  the  neutralization  of  such  ship 
canal  the  following  rules,  substantially  as  embodied  in  the  Convention  of 
Constantinople,  signed  October  28,  1888,  for  the  free  navigation  of  the 
Suez  Canal;  that  is  to  say: 

1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce  and  of 
war  of  all  nations  observing  these  rules  on  terms  of  entire  equality,  so 
that  there  shall  be  no  discrimination  against  any  such  nation,  or  its  citizens 
or  subjects,  in  respect  of  the  conditions  or  charges  of  traffic  or  otherwise. 
Such  conditions  and  charges  of  traffic  shall  be  just  and  equitable. 

Rule  1,  which  I  have  just  read,  is  the  section  1  of  article  3 
of  the  treaty  with  Great  Britain,  which  is  specified  in  the 
eighteenth  article  of  our  grant  of  title  from  Panama  as  being 
especially  and  peculiarly  and  signally  incumbent  upon  us  to 
observe.  *'  The  canal,"  says  the  treaty  with  Panama,  "  when 
constructed,  and  the  entrances  thereto,  shall  be  neutral  in 
perpetuity  and  shall  be  opened  upon  the  terms  provided  for 
by  section  1  of  article  3  "  of  the  treaty  with  Great  Britain. 

I  have  now  read  section  1  of  article  3.  There  follows,  then, 
in  article  3,  a  series  of  provisions  relating  specifically  to  the 
kind  of  neutraUty  which  shall  be  imposed.  They  are  in  sub- 
stance these: 

First.  There  shall  be  no  blockade  of  the  canal  or  act  of  war 
in  it  or  in  its  terminal  waters. 

Second.  There  shall  be  no  delay  in  transit  in  time  of  war 
by  a  belligerent. 

Third.  No  troops  or  suppHes  in  time  of  war  shall  be  landed 
or  taken  on  by  vessels  in  the  canal. 

Fourth.  Belligerent  ships  shall  remain  but  twenty-four 
hours  in  the  terminal  waters. 

Fifth.  A  war  vessel  of  one  belligerent  shall  not  leave  the 
canal  within  twenty-four  hours  after  the  vessel  of  another 
belhgerent  has  left. 

All  of  those  are  covered  by  the  general  provision  of  the 
article  in  the  treaty  with  Panama  in  these  words: 


«46  INTERNATIONAL  SUBJECTS 

And  in  conformity  with  all  the  stipulations  of  the  treaty  entered  into 
by  the  Govermnents  of  the  United  States  and  Great  Britain. 

Under  these  provisions,  first,  of  the  Panama  treaty,  and, 
second,  of  the  treaty  with  Great  Britain,  which  is  incor- 
porated into  the  grant  of  title  to  us,  one  question,  and  one 
question  only,  is  raised.  That  is :  What  is  the  measure  of  the 
tolls  that  we  are  at  liberty  to  charge  a  ship  belonging  to  a 
British  or  German  or  French  citizen  passing  through  the 
canal  ? 

It  is  quite  natural  to  say  that  this  is  a  question  of  the  ex- 
emption of  our  ships.  It  is  not  a  question  of  the  exemption 
of  our  ships.  No  one  doubts  our  right  to  pass  our  ships 
through  the  canal  free,  or  for  any  tolls  that  we  choose  to 
impose  and  that  they  are  able  and  willing  to  pay.  The  ques- 
tion is  whether  we  are  bound  to  take  our  treatment  of  the 
ships  belonging  to  American  citizens  as  the  measure  of  the 
treatment  that  we  accord  to  ships  belonging  to  the  citizens  of 
other  countries. 

We  have  the  canal  at  the  Sault,  through  which  pass  a 
greater  tonnage  and  a  greater  traffic  than  we  can  anticipate 
for  the  Panama  Canal  for  generations.  We  charge  no  tolls  to 
American  vessels  —  that  is  to  say,  vessels  owned  by  Ameri- 
can citizens  —  passing  through  the  canal  at  the  Sault;  and 
by  treaty  we  grant  to  the  citizens  of  Great  Britain  and 
Canada  the  same  treatment  we  accord  to  our  own  citizens 
and  their  vessels.  We  have  agreed  that  the  measure  that  we 
mete  to  our  own  citizens  shall  be  the  measure  we  mete  to  the 
citizens  of  Canada.  There  is  no  question  there  about  our 
rights  with  our  own,  and  there  is  no  question  here  about 
our  rights  with  our  own. 

Nor,  Mr.  President,  is  there  any  question  here  about  the 
absolute  and  complete  control  of  the  canal  by  the  United 
States.  There  is  no  question,  there  can  be  no  question,  about 
it.   Pohtical  control,  military  control,  administrative  control. 


PANAMA  CANAL  TOLLS  247 

all  are  ours.  The  only  question  is.  What  standard  are  we 
bound  to  apply  in  making  a  charge  to  the  citizens  of  another 
country  for  the  use  of  the  canal  for  passing  the  ships  through? 
The  treaty  itself  is  quite  clear.    It  says: 

Subject  to  the  provisions  of  the  present  treaty,  the  said  Government 
shall  have  and  enjoy  all  the  rights  incident  to  such  construction,  as  well 
as  the  exclusive  right  of  providing  for  the  regulation  and  management  of 
the  canal. 

We  occupy  a  variety  of  relations  to  that  business.  We 
are  the  practical  sovereign  of  the  territory,  and  we  have 
all  the  rights  of  sovereignty  in  respect  of  the  territory. 
We  are  the  owner  of  the  canal  just  as  a  canal  company 
would  be  the  owner  if  it  had  constructed  it  imder  a  charter, 
just  as  the  Panama  Railroad  Company  owns  the  Panama 
Railroad.  We  shall  be  the  owner  of  many  ships  that  pass 
through  the  canal.  We  owe  protection  to  many  citizens  of 
the  United  States  who  will  own  ships  that  pass  through 
the  canal. 

Those  four  diflFerent  relations  of  the  United  States  to  this 
business  stand  each  by  itself,  and  the  rights  and  obligations 
of  each  may  be  clearly  ascertained  and  stated.  Sometimes  a 
dual  quality  will  effect  an  extinguishment  of  rights  and  obli- 
gations, as,  for  instance,  if  the  United  States  as  the  owner  of  a 
ship  sends  its  ship  through  a  canal  and  is  also  the  owner  of 
the  canal,  the  obligation  as  owner  of  the  ship  to  the  owner 
of  the  canal  will  be  offset;  but  for  any  clear  conception  of 
what  the  rights  and  obligations  are,  we  must  consider  each 
character  in  which  the  United  States  stands  by  itself. 

It  would  be  impossible  to  state  more  distinctly  the  precise 
relation  that  we  have  in  regard  to  the  control  of  the  canal 
than  Mr.  Choate  stated  it  in  his  letter  of  October  2, 1901,  to 
Mr.  Hay,  when  the  treaty  was  agreed  upon.    He  said: 

I  am  sure  that  in  this  whole  matter,  since  the  receipt  by  him  of  your 
new  draft.  Lord  Lansdowne  has  been  most  considerate  and  more  than 


248  INTERNATIONAL  SUBJECTS 

generous.  He  has  shown  an  earnest  desire  to  bring  to  an  amicable  settle- 
ment, honorable  alike  to  both  parties,  this  long  and  important  contro- 
versy between  the  two  nations.  In  substance,  he  abrogates  the  Clayton- 
Bulwer  Treaty,  gives  us  an  American  canal  —  ours  to  build  as  and  where 
we  like,  to  own,  control,  and  govern  —  on  the  sole  condition  of  its  being 
always  neutral  and  free  for  the  passage  of  the  ships  of  all  nations  on  equal 
terms,  except  that  if  we  get  into  a  war  with  any  nation  we  can  shut  its 
ships  out  and  take  care  of  ourselves. 

Nor  is  there  any  question  here  about  ships  owned  by  the 
United  States.  There  is  much  confusion  in  discussing  this 
subject,  arising  from  the  use  of  the  term  "  ships  of  the  United 
States  "  or  "  American  ships."  The  Senator  from  Mississippi 
[Mr.  Williams]  called  attention  to  that  the  other  day  very 
pointedly.  There  are  ships  owned  by  the  United  States. 
When  the  United  States  acquires  the  other  character  of 
owner  of  the  canal,  of  course  there  can  be  no  question  about 
tolls  on  those  ships;  but  ships  owned  by  citizens  of  the 
United  States  are  quite  a  different  thing.  Citizens  of  the 
United  States  are  not  the  United  States.  They  are  separate 
and  distinct  entities.  We  tax  them,  we  regulate  them,  we 
fine  them,  we  impose  charges  upon  them.  If  they  acquire 
property  from  the  United  States,  they  pay  for  it,  and  if  the 
United  States  acquires  property  from  them,  it  pays  for  it. 
They  are  entirely  separate  and  distinct  individuals  from  the 
United  States.  The  question  here  is  about  charges  that  shall 
be  made  by  the  United  States  to  two  different  classes  of 
separate  and  distinct  individuals,  both  classes  being  the 
owners  of  ships,  one  class  being  citizens  of  the  United  States 
and  the  other  class  being  citizens  of  some  other  country. 

The  words  of  this  Hay-Pauncefote  Treaty,  Mr.  President, 
are  framed  to  cover  both  a  canal  company  and  the  United 
States.  Observe  that  article  2  of  the  Hay-Paimcefote 
Treaty  says: 

It  is  agreed  that  the  canal  may  be  constructed  under  the  auspices  of 
the  Government  of  the  United  States,  either  directly  at  its  own  cost  or 


PANAMA  CANAL  TOLLS  249 

by  gift  or  loan  of  money  to  individuals  or  corporations,  or  through  sub- 
scription to  or  purchase  of  stock  or  shares,  and  that,  subject  to  the  pro- 
visions of  the  present  treaty,  the  said  Government  shall  have  and  enjoy  — 

and  so  forth. 

Now,  there  is  a  variety  of  contingencies  to  which  the  words 
of  this  treaty  are  addressed,  and  you  must  construe  the  words 
as  they  would  apply  to  a  canal  company  in  which  the  Gov- 
ernment of  the  United  States  had  become  a  stockholder,  as 
it  is  of  the  Panama  Railroad  Company  today,  or  the  bonds  of 
which  the  United  States  has  guaranteed,  as  it  guaranteed  the 
bonds  of  the  Pacific  railroad  companies.  The  fact  that  the 
United  States  has  stepped  in  and  itself  taken  the  character 
of  a  canal  company  makes  no  difference  whatever  in  the 
meaning  and  force  and  interpretation  and  application  of 
these  words.  The  treaty  remains  the  same,  the  meaning  of  it 
the  same.  The  acquisition  of  additional  and  different  rights 
by  the  United  States  may  arise  merely  to  modify  the  effect  of 
the  application  of  the  treaty. 

Nor,  Mr.  President,  is  there  any  question  here  about  the 
right  of  the  United  States  to  subsidize  its  own  ships.  That  is 
as  clear  and  as  unquestionable  as  its  right  to  appropriate 
money  to  put  up  a  public  building  in  the  city  of  Washington. 
It  does  not  rest  upon  our  assertion,  for  Sir  Edward  Grey,  the 
secretary  of  state  for  foreign  affairs  of  Great  Britain,  in  his 
memorandum  handed  to  our  Secretary  of  State  on  Decem- 
ber 9,  1912,  says,  commenting  upon  President  Taft's  memo- 
randum accompanying  the  signature  to  the  bill  — 

The  President  argues  upon  the  assumption  that  it  is  the  intention  of 
His  Majesty's  Government  to  place  upon  the  Hay-Pauncefote  Treaty  an 
interpretation  which  would  prevent  the  United  States  from  granting  sub- 
sidies to  their  own  shipping  passing  through  the  canal,  and  which  would 
place  them  at  a  disadvantage  as  compared  with  other  nations.  This  is 
not  the  case.  His  Majesty's  Government  regard  equahty  of  all  nations 
as  the  fundamental  principle  underlying  the  treaty  of  1901  in  the  same 
way  that  it  was  the  basis  of  the  Suez  Canal  convention  of  1888,  and  they 
do  not  seek  to  deprive  the  United  States  of  any  Uberty  which  is  open 


250  INTERNATIONAL  SUBJECTS 

either  to  themselves  or  to  any  other  nation;  nor  do  they  find  either  in 
the  letter  or  in  the  spirit  of  the  Hay-Pauncefote  Treaty  any  surrender  by 
either  of  the  contracting  powers  of  the  right  to  encourage  its  shipping  or 
its  commerce  by  such  subsidies  as  it  may  deem  expedient. 

I  take  the  line  to  be  at  the  point  where  title  to  the  money 
vests  in  the  United  States.  If  the  construction  which  I  feel 
forced  to  give  to  this  treaty  is  a  sound  one,  we  are  not  at 
liberty  to  produce  the  result  of  a  subsidy  to  American  ships 
by  relieving  them  of  tolls  which  we  impose  upon  other  ships. 
We  are  not  at  Uberty  to  produce  the  effect  of  a  subsidy  in 
that  way;  but  the  instant  that  the  money  paid  for  tolls  be- 
comes the  property  of  the  United  States,  becomes  a  part  of 
the  general  fund  of  the  United  States,  the  United  States  has 
absolute  and  uncontrollable  authority  in  the  disposition  of 
that  money.  All  lawyers  are  familiar  with  the  distinction 
between  accomplishing  an  unlawful  object  in  a  lawful  way 
and  accomplishing  a  lawful  object  in  an  unlawful  way.  To 
subsidize  American  ships  is  lawful.  However  we  may  differ 
about  the  policy,  we  have  the  power;  we  have  the  right;  but 
if  the  construction  I  give  to  this  treaty  is  the  correct  one,  we 
have  excluded  ourselves  by  solemn  covenant  from  accom- 
plishing that  lawful  result  in  this  particular  way;  and  if  it  be 
true  that  we  have  excluded  ourselves  from  doing  it  in  this 
particular  way,  it  is  no  answer  to  say  the  same  result  could 
be  accomplished  in  another  way.  In  my  view  it  is  no  concern 
of  ours  why  Great  Britain  chooses  to  insist  upon  our  keeping 
the  covenant  and  not  to  produce  the  effect  of  a  subsidy  in 
that  particular  way.  If  this  construction  of  the  treaty  is 
right,  she  has  a  right  to  say,  "  You  shall  not  do  that  thing  in 
that  way  ";  and  if  we  made  the  covenant,  it  is  none  of  our 
affairs  why  she  chooses  to  say  it. 

Now,  upon  what  conflict  of  reasons  rests  the  decision  of  the 
question  whether  we  are  bound  to  regulate  the  tolls  upon 
foreign  shipping  by  the  tolls  on  American  shipping  ?    The 


PANAMA  CANAL  TOLLS  251 

underlying  question  has  been  stated  quite  frequently  as  being 
whether  the  words  "  all  nations  "  in  rule  1  of  article  3  include 
the  United  States  or  not.    Rule  1  reads: 

The  canal  shall  be  free  and  opjen  to  the  vessels  of  commerce  and  war  of 
all  nations  observing  these  rules  on  terms  of  entire  equality. 

I  say  that  very  often  the  subject  has  been  discussed  upon 
the  assumption  that  the  answer  to  the  practical  question 
raised  depends  upon  whether  the  term  "  all  nations  "  in- 
cludes the  United  States  or  not.  That  does  not  get  to  the 
foundation  upon  which  the  reasoning  should  rest.  The 
fundamental  question  is,  What  kind  of  equality  did  the 
makers  of  this  treaty  intend  ?    Says  the  treaty: 

The  canal  shall  be  free  and  open  to  all  vessels  of  commerce  and  war 
of  all  nations  observing  these  rules  on  terms  of  entire  equality. 

When  a  French  or  a  German  ship  sails  into  that  canal  and 
has  imposed  upon  it  a  toll,  and  says,  "  this  toll  is  unequal  be- 
cause the  vessel  that  passed  here  immediately  before  me  was 
allowed  to  go  with  a  lower  rate  of  toll,'*  can  that  be  said,  if 
the  vessel  before  was  an  American  ship  —    " 

Mr.  Williams.    The  ship  of  an  American  citizen. 

Mr.  Root.  The  ship  of  an  American  citizen;  or  can  it  be 
said  only  if  it  was  the  ship  of  some  foreign  power  ?  What  is 
the  **  entire  equality  "  contemplated  by  rule  1  of  article  3  of 
this  treaty  ?  Is  it  entire  so  that  it  assures  equality  in  com- 
parison with  all  ships  engaged  in  the  same  trade  similarly 
situated,  the  same  kind  of  trade,  or  is  it  partial,  so  as  to  be 
equality  in  comparison  only  with  certain  ships  engaged  in  the 
same  kind  of  trade  and  not  applying  to  other  ships  engaged  in 
the  same  kind  of  trade,  to  wit,  not  applying  to  ships  which  are 
owned  by  American  citizens  ?    The  rule  proceeds: 

So  that  there  shall  be  no  discrimination  against  any  such  nation  or  its 
citizens  or  subjects  in  respect  of  the  conditions  or  charges  of  traffic  or 
otherwise. 


252  INTERNATIONAL  SUBJECTS 

Is  the  kind  of  equality  that  is  assured  such  that  there  will 
be  no  discrimination,  or  that  there  will  be  no  discrimination 
except  against  the  ships  of  other  nations  and  in  favor  of  ships 
belonging  to  American  citizens  ? 

Now,  let  us  examine  the  question  in  the  light  of  the  circum- 
stances which  surrounded  the  making  of  this  treaty  and  the 
conditions  imder  which  it  was  made.  Treaties  cannot  be  use- 
fully interpreted  with  the  microscope  and  the  dissecting 
knife,  as  if  they  were  criminal  indictments.  Treaties  are 
steps  in  the  life  and  the  development  of  great  nations.  Pub- 
lic policies  enter  uito  them;  public  policies  certified  by  public 
documents  and  authentic  expressions  of  public  officers.  Long 
contests  between  the  representatives  of  nations  enter  into  the 
choice  and  arrangement  of  the  words  of  a  treaty.  If  you 
would  be  sure  of  what  a  treaty  means,  if  there  be  any  doubt, 
if  there  are  two  interpretations  suggested,  learn  out  of  what 
conflicting  public  poHcies  the  words  of  the  treaty  had  their 
birth;  what  arguments  were  made  for  one  side  or  the  other, 
what  concessions  were  yielded  in  the  making  of  a  treaty. 
Always,  with  rare  exceptions,  the  birth  and  development  of 
every  important  clause  may  be  traced  by  the  authentic  rec- 
ords of  the  negotiators  and  of  the  countries  which  are  recon- 
ciling their  differences.  So  it  is  the  universal  rule  iu  all 
diplomatic  correspondence  regarding  international  rights,  in 
all  coiui;s  of  arbitration,  that  far  more  weight  is  given  to 
records  of  negotiations,  to  the  expressions  of  the  negotiators, 
to  the  history  of  the  provisions  than  is  customary  in  regard  to 
private  contracts  or  criminal  indictments. 

This  question  as  to  the  kind  of  equaUty  that  the  makers  of 
this  treaty  intended  to  give,  divides  itself  very  clearly  and 
distinctly  into  a  question  between  two  perfectly  well-known 
expedients  of  treaty  making;  one  is  the  favored-nation  pro- 
vision, with  which  we  are  all  very  familiar  in  commercial 
treaties,  and  the  other  is  the  provision  according  to  citizens  of 


PANAMA  CANAL  TOLLS  253 

another  country  rights  measured  by  the  rights  of  the  nationals 
or  citizens  of  the  contracting  country.  The  most-favored-na- 
tion provision  has  its  most  common  expression  in  the  provi- 
sion regarding  tariff  duties,  a  provision  that  no  higher  duties 
shall  becharged  upon  goods  imported  from  one  foreign  country 
than  upon  goods  imported  from  other  foreign  countries.  That 
is  the  common  "  most-favored-nation  clause." 

The  other  has  its  probably  most  common  provision  in  the 
laws  relating  to  the  treatment  of  vessels  in  the  ports  of  a  con- 
tracting country,  assuring  to  them  that  no  higher  tolls  or 
charges,  harbor  dues  or  light  dues,  or  dues  of  that  description 
shall  be  charged  against  them  than  against  the  vessels  of  the 
country  in  which  the  port  is  situated. 

This  question  here  is  between  those  two.  I  cannot  better 
illustrate  the  two  kinds  I  have  mentioned  than  by  referring 
to  the  treaty  with  the  Argentine  Republic  in  1853,  a  typical 
treaty  of  friendship,  commerce,  and  navigation.  Before  I 
read  from  it,  I  will  state  what  is  an  almost  universal  custom 
among  civilized  nations  in  regard  to  the  use  of  these  two 
standards  of  comparison  for  the  purpose  of  assuring  one  or 
another  kind  of  equality.  It  is  the  practically  universal  cus- 
tom, where  the  citizens  of  another  country  bear  the  same 
relation  to  a  particular  anticipated  transaction  or  course  of 
business,  that  the  citizens  of  the  contracting  country  bear,  in 
treaties  of  peace  and  friendship  and  amity,  to  accord  to 
citizens  of  the  other  country  equality  measured  by  the  treat- 
ment of  the  citizens  of  the  contracting  country;  and,  in 
general,  it  is  only  when  the  citizens  of  the  other  country  bear 
a  diflferent  relation  to  the  anticipated  transaction  or  course  of 
business,  that  recourse  is  had  to  the  favored-nation  clause,  as 
where  the  people  of  one  country  are  exporting  goods  and  the 
people  of  the  contracting  country  are  importing  goods. 
Plainly  you  cannot  give  to  the  exporter  the  same  treatment 
you  give  to  the  importer;  they  are  two  different  classes. 


254  INTERNATIONAL  SUBJECTS 

Let  me  illustrate  that  by  referring  to  the  Argentine  treaty: 

Ahticle  2.  There  shall  be  between  all  the  territories  of  the  United 
States  and  all  the  territories  of  the  Argentine  Confederation  a  reciprocal 
freedom  of  commerce.  The  citizens  of  the  two  countries,  respectively, 
shall  have  liberty,  freely  and  securely,  to  come  with  their  ships  and  car- 
goes to  all  places,  ports,  and  rivers  in  the  territories  of  either,  to  which 
other  foreigners,  or  the  ships  or  cargoes  of  any  other  foreign  nation  or 
state,  are,  or  may  be,  permitted  to  come. 

Abticle  3.  The  two  high  contracting  parties  agree  that  any  favor, 
exemption,  privilege,  or  immunity,  whatever,  in  matters  of  conunerce  and 
navigation,  which  either  of  them  has  actually  granted,  or  may  hereafter 
grant,  to  the  citizens  or  subjects  of  any  other  government,  nation,  or  state, 
shall  extend,  in  identity  of  cases  and  circumstances,  to  the  citizens  of  the 
other  contracting  party. 

Abticle  4.  No  higher  or  other  duties  shall  be  imposed  on  the  importa- 
tion into  the  territories  of  either  of  the  two  contracting  parties  of  any 
article  of  the  growth,  produce,  or  manufacture  of  the  territories  of  the 
other  contracting  party  than  are,  or  shall  be,  payable  on  the  like  article 
of  any  other  foreign  country. 

Those  are  favored-nation  clauses.    Article  5  provides: 

No  other  or  higher  duties  or  charges,  on  account  of  tonnage,  light,  or 
harbor  dues,  pilotage,  salvage  in  case  of  average  or  shipwreck,  or  any 
other  local  charges,  shall  be  imposed  in  the  jwrts  of  the  two  contracting 
parties  on  the  vessels  of  the  other  than  those  payable  in  the  same  ports  on 
its  own  vessels. 

There  is  the  higher  type  of  equality,  because  the  ships  coming 

into  an  American  port  have  the  same  relation  to  that  port, 

whether  they  belong    to  an  Argentine  citizen   or  to   an 

American.  .  _ 

Article  6 

The  same  duties  shall  be  paid,  and  the  same  drawbacks  and  bounties 
allowed,  upon  the  importation  or  exportation,  of  any  article  into  or  from 
the  territories  of  the  United  States  or  into  or  from  the  territories  of  the 
Argentine  Confederation  whether  such  importation  or  exportation  be  made 
in  vessels  of  the  United  States  or  in  vessels  of  the  Argentine  Confederation. 

Article  8 
All  merchants,  commanders  of  ships,  and  others,  citizens  of  the  United 
States,  shall  have  full  liberty  in  all  the  territories  of  the  Argentine  Con- 


PANAMA  CANAL  TOLLS  ^55 

federation  to  manage  their  own  affairs  themselves  or  to  commit  them  to 
the  management  of  whomsoever  they  please  as  broker,  factor,  agent,  or 
interpreter;  nor  shall  they  be  obliged  to  employ  any  other  persons  in  those 
capacities  than  those  employed  by  citizens  of  the  Argentine  Confedera- 
tion. .  .  . 

Abticle  9 

In  whatever  relates  to  the  police  of  the  ports,  the  lading  and  unlading 
of  ships,  the  safety  of  the  merchandise,  goods  and  effects,  and  to  the 
acquiring  and  disposing  of  property  of  every  sort  and  denomination,  either 
by  sale,  donation,  exchange,  testament,  or  in  any  other  manner  whatsoever, 
as  also  to  the  administration  of  justice,  the  citizens  of  the  two  contracting 
parties  shall  reciprocally  enjoy  the  same  privileges,  liberties,  and  rights 
as  native  citizens. 

And  so  on  through  a  great  number  of  other  provisions.  In 
brief,  a  careful  examination  shows  this  to  be  a  fact:  that  it 
is  the  universal  rule,  with  rare  exceptions,  that  wherever 
the  rights  of  the  citizens  of  a  contracting  country  can  be 
made  the  standard  of  equality  for  the  citizens  of  another 
coimtry  they  are  made  so,  and  that  recourse  is  not  had  to 
the  most-favored-nation  clause,  except  where  that  higher 
degree  of  equality  is  impossible  because  the  citizens  of  the 
two  countries  occupy  different  relations  to  the  business  that 
is  contemplated. 

So  we  have  the  question  between  these  two  kinds  of 
equality  clearly  drawn  and  resting  upon  long  experience  of 
nations,  a  subject  fully  understood  by  the  negotiators  of  this 
treaty  upon  both  sides. 

We  know  now  that  the  negotiators  of  this  treaty,  the  men 
who  made  it,  all  understood  that  the  larger  equality  was  in- 
tended by  its  terms.  Of  course,  what  the  negotiator  of  a 
treaty  says  cannot  be  effective  to  overthrow  a  treaty;  but 
I  think  we  must  all  start,  in  considering  this  question,  with 
the  assumption  that  the  words  are  capable  of  two  construc- 
tions. I  think  no  one  can  deny  that,  in  view  of  the  differences 
of  opinion  which  have  been  expressed  here  regarding  their 
meaning.    So  here  are  words  capable  of  two  constructions,  a 


25Q  INTERNATIONAL  SUBJECTS 

broad  construction  and  a  narrow  construction,  but  the  fact 
that  all  the  makers  of  the  treaty  intended  that  the  words  they 
used  should  have  the  larger  effect,  is  certainly  very  persuasive 
toward  the  conclusion  that  those  words  should  receive  the 
larger  effect.  Not  only  the  American  negotiators  but  the 
British  negotiators  as  well  so  imderstood  it.  Whenever  we 
seek  to  impose  upon  these  words  a  narrower  construction  for 
our  own  interests  than  the  makers  of  the  treaty  understood 
them  to  have,  we  should  remember  the  fundamental  rule  of 
morals  that  a  promisor  is  bound  to  keep  a  promise  in  the 
sense  in  which  he  had  reason  to  beheve  the  promisee  under- 
stood it  was  made. 

Let  us  look  at  the  understanding  of  the  negotiators.  Mr. 
Choate  writes  this  in  a  letter  to  Honorable  Henry  White, 
dated  April  14,  1914: 

As  I  telegraphed  to  you  last  night,  on  receipt  of  yoiur  telegram  of 
yesterday,  I  wrote  to  the  chairman  of  the  committee.  Senator  O'Gorman, 
inclosing  to  him,  by  the  express  permission  of  the  Secretary  of  State,  a 
copy  of  my  letters  to  Secretary  Hay  between  August  3,  and  October  12, 
1901,  the  same  that  you  have.  To  my  mind  they  establish  beyond  ques- 
tion the  intent  of  the  parties  engaged  in  the  negotiation,  that  the  treaty 
should  mean  exactly  what  it  says,  and  excludes  the  possibihty  of  any 
exemption  of  any  kind  of  vessels  of  the  United  States.  Equality  between 
Great  Britain  and  the  United  States  is  the  constant  theme,  and  especially 
in  my  last  letter  of  October  2,  1901,  where  I  speak  of  Lord  Lansdowne's 
part  in  the  matter,  and  say,  "  He  has  shown  an  earnest  desire  to  bring 
to  an  amicable  settlement,  honorable  alike  to  both  parties,  this  long  and 
important  controversy  between  the  two  nations.  In  substance,  he  abro- 
gates the  Clayton-Bulwer  Treaty,  gives  us  an  American  canal,  ours  to  build 
as  and  where  we  like,  to  own,  control,  and  govern,  on  the  sole  condition  of 
its  being  always  neutral  and  free  for  the  passage  of  the  ships  of  all  nations 
on  equal  terms,  except  that  if  we  get  into  a  war  with  any  nation  -we  can 
shut  its  ships  out  and  take  care  of  ourselves." 

This  was  the  summing-up  of  our  whole  two  months'  negotiation. 

Mr.  Henry  White's  imderstanding  of  it  is  shown  in  the 
testimony  before  the  Committee  on  Interoceanic  Canals, 
April  14,  1914.    He  says: 


PANAMA  CANAL  TOLLS  257 

During  the  entire  period  of  those  negotiations  and  in  all  of  my  conver- 
sations with  Lord  Salisbury  or  with  any  one  else  on  either  side  of  the 
Atlantic  I  never  heard  the  subject  of  oiu"  coastwise  traffic  mentioned.  It 
was  always  assumed  by  those  carrying  on  the  negotiations  —  it  certainly 
was  by  me  in  my  interview  with  Lord  Sahsbury  —  that  he  meant  that  our 
ships  should  be  considered,  or  rather  that  the  United  States  should  be 
considered,  as  included  in  the  term  "  all  nations." 

Senator  Simmons.    And  our  coastwise  ships  ? 

Mr.  White.    All  ships. 

The  Chairman.  You  are  stating  now  what  your  understanding  is, 
not  what  the  language  was  ? 

Mr.  White.  No;  my  understanding.  The  language  was  "  ships  of 
all  nations  on  equal  terms."  That  was  the  language  used  by  Lord  Salis- 
biu-y,  which  I  cabled  the  same  day  to  Mr.  Hay.  Mr.  Hay  had  asked  Lord 
Salisbury  to  remove  such  obstacles  in  the  Clayton-Bulwer  Treaty  as  stood 
in  the  way  of  our  building  the  canal,  and  his  reply  was  that  he  had  no 
doubt  these  obstacles  would  eventually  be  removed,  provided  the  ships 
of  all  nations  should  go  through  the  canal  on  equal  terms. 

Senator  Simmons.  Do  I  understand  you  to  say  you  had  suggestions 
from  any  direction  that  our  coastwise  ships  were  to  be  treated  differently  ? 

Mr.  White.    Never  from  beginning  to  end. 

We  know  from  many  sources  what  Mr.  Hay's  views  were. 
The  Senator  from  Connecticut  [Mr.  McLean]  has  read  to  you 
a  statement  of  them,  authentic,  made  about  the  time  of  the 
treaty,  at  the  time  the  treaty  with  Panama  was  under  con- 
sideration.   Here  is  what  Mr.  Hay  says: 

"  All  means  aU.  The  treaty  was  not  so  long  that  we  could  not  have 
made  room  for  the  word  '  other '  if  we  had  understood  that  it  belonged 
there.  *  All  nations  '  means  all  nations,  and  the  United  States  is  certainly 
a  nation." 

"  That  was  the  understanding  between  yourself  and  Lord  Pauncefote 
when  you  and  he  made  the  treaty  ?  "  I  pursued. 

"  It  certainly  was,"  he  rephed.  "  It  was  the  understanding  of  both 
Governments,  and  I  have  no  doubt  that  the  Senate  realized  that  in  ratify- 
ing the  second  treaty  without  such  an  amendment  it  was  committing  us 
to  the  principle  of  giving  all  friendly  nations  equal  privileges  in  the  canal 
with  ourselves.    That  is  our  golden  rule." 

I  cannot  pass  from  this  subject  without  also  calhng  atten- 
tion to  the  language  used  by  President  Roosevelt  in  his 


258  INTERNATIONAL  SUBJECTS 

message  to  the  Senate,  upon  which  the  Panama  treaty  was 
ratified.  President  Roosevelt  said  in  this  message  of  January 
4,  1904,  laying  before  Congress  the  Panama  treaty: 

The  proper  position  for  the  United  States  to  assume  in  reference  to  this 
canal,  and  therefore  to  the  Governments  of  the  Isthmus,  had  been  clearly 
set  forth  by  Secretary  Cass  in  1858.  In  my  annual  message  I  have  already 
quoted  what  Secretary  Cass  said;  but  I  repeat  the  quotation  here,  because 
the  principle  it  states  is  fundamental: 

"  While  the  rights  of  sovereignty  of  the  states  occupying  this  region 
(Central  America)  should  always  be  respected,  we  shall  expect  that  these 
rights  be  exercised  in  a  spirit  befitting  the  occasion  and  the  wants  and 
circumstances  that  have  arisen.  Sovereignty  has  its  duties  as  well  as  its 
rights,  and  none  of  these  local  governments,  even  if  administered  with 
more  regard  to  the  just  demands  of  other  nations  than  they  have  been, 
would  be  permitted  in  a  spirit  of  Eastern  isolation  to  close  the  gates  of 
intercourse  on  the  great  highways  of  the  world  and  justify  the  act  by  the 
pretension  that  these  avenues  of  trade  and  travel  belong  to  them  and 
that  they  choose  to  shut  them,  or,  what  is  almost  equivalent,  to  encumber 
them  with  such  imjust  relations  as  would  prevent  their  general  use." 

The  principle  thus  enunciated  by  Secretary  Cass  was  sound  then  and 
it  is  soimd  now.  The  United  States  has  taken  the  position  that  no  other 
Government  is  to  build  the  canal.  In  1889,  when  France  proposed  to 
come  to  the  aid  of  the  French  Panama  Company  by  guaranteeing  their 
bonds,  the  Senate  of  the  United  States  in  executive  session,  with  only  some 
three  votes  dissenting,  passed  a  resolution,  as  follows: 

"  That  the  Government  of  the  United  States  will  look  with  serious  con- 
cern and  disapproval  upon  any  connection  of  any  European  Government 
with  the  construction  or  control  of  any  ship  canal  across  the  Isthmus  of 
Darien  or  across  Central  America,  and  must  regard  any  such  connection 
or  control  as  injurious  to  the  just  rights  and  interests  of  the  United  States 
and  as  a  menace  to  their  welfare." 

Under  the  Hay-Paimcefote  Treaty  it  was  explicitly  provided  that  the 
United  States  should  control,  police,  and  protect  the  canal  which  was  to 
be  built,  keeping  it  oi)en  for  the  vessels  of  all  nations  on  equal  terms. 
The  United  States  thus  assumed  the  position  of  guarantor  of  the  canal 
and  of  its  peaceful  use  by  all  the  world. 

Who  were  these  men  ?  Certainly,  any  one  who  finds  in  this 
treaty  now  a  meaning  different  from  that  which  they  thought 
their  words  carried,  should  consider  many  times  the  steps  by 
which  he  reaches  his  conclusion. 


PANAMA  CANAL  TOLLS  259 

Mr.  Choate,  the  head  of  the  American  bar,  clear,  able,  with 
penetrating  intelligence,  with  vast  experience  in  the  use  of 
words  and  the  construction  of  treaties,  of  statutes,  of  con- 
tracts, unquestionable  in  the  virile  strength  and  loyalty  of  his 
Americanism.  When  he  thought  that  the  words  he  used  had 
a  particular  meaning,  we  may  well  think  twice  before  we  say 
that  they  have  not  that  meaning. 

Henry  White,  one  of  the  few  diplomats  trained  from  their 
youth  up  in  the  American  service. 

John  Hay,  the  pride  of  our  generation  in  American  diplo- 
macy. John  Hay,  that  sensitive  soul  who  could  produce  the 
American  types  of  the  Pike  County  ballads,  and  the  charm, 
the  felicity  of  whose  phrases  makes  them  jewels  in  the  history 
of  American  literature.  John  Hay,  who  received  the  spirit, 
the  motive,  the  characteristics  of  his  Americanism  as  the 
young  secretary  and  the  confidential  and  intimate  friend  of 
Lincoln. 

Theodore  Roosevelt,  with  his  swift,  incisive  mind  and  his 
high  courage. 

All  these  —  the  charge  d'affaires  who  opened  the  negotia- 
tions with  Lord  Salisbury,  the  ambassador  who  carried  on  the 
negotiations,  the  Secretary  of  State  who  supervised  and  au- 
thorized the  negotiations,  the  President  who  authorized,  as 
one  of  the  first  acts  of  his  presidency,  the  signature  to  the 
treaty  and  laid  it  before  the  Senate  —  all  these  understood 
that  they  were  making  a  treaty  with  the  largest  equality,  and 
with  no  trifling,  narrow,  '*  favored  nation  "  provision. 

Indeed,  sir,  the  "  favored  nation  "  clause  is  of  but  little 
value.  If  the  standard  of  equality  be  not  the  standard  of  the 
treatment  of  ships  owned  by  American  citizens,  and  be 
nothing  but  the  "  favored  nation  "  standard  —  that  is, 
equality  as  between  foreigners  —  it  is  of  but  very  little  value. 
That  equality  would  be  practically  compelled  by  the  usages 
of  civiUzation  without  any  treaty  at  all.    No  nation  could 


260  INTERNATIONAL  SUBJECTS 

ever  maintain  a  practice  of  charging  for  the  use  of  a  canal 
connecting  two  oceans  a  different  rate  of  tolls  as  against  Ger- 
mans or  French  or  English  or  Italians.  It  never  has  been 
done  anywhere  in  the  world.  It  never  will  be  done  unless 
civilization  goes  back  from  the  level  which  it  has  now 
reached.  But  the  other,  the  larger,  equality  is  of  value;  for 
the  treatment  of  the  citizens  of  the  country  which  owns  the 
canal,  the  treatment  they  will  submit  to,  the  treatment  that 
it  is  safe  to  accord  to  them  before  election,  is  a  safe  and  a 
sound,  substantial  guaranty  of  the  treatment  the  citizens  of 
other  nations  will  receive;  so  that  is  of  value. 

Mr.  President,  of  course  what  these  negotiators  all  thought 
they  were  doing  by  the  use  of  these  words  is  not  conclusive. 
It  is  persuasive,  but  not  conclusive.  Let  us  ascertain  why 
they  thought  so,  if  we  can. 

The  first  reason  why  it  seems  to  me  they  could  not  possibly 
have  meant  anything  else  than  they  say  they  meant,  is  that 
for  three-quarters  of  a  century  the  United  States  had  been 
declaring  to  the  world  that  she  sought  to  procure  the  making 
of  the  canal  across  the  Isthmus  as  a  pubhc-service  work,  a 
pubhc  calling,  a  public  utility,  with  all  the  nations  the  pubHc 
to  be  served.  I  say,  for  three-quarters  of  a  century  the 
United  States  had  been  making  that  declaration  as  to  her 
relation  to  this  work;  yes,  always  without  one  varying  note, 
until  we  got  the  title  and  control  of  the  canal;  and  then  for 
the  first  time  is  heard  the  demand  that  American  owners  of 
ships  shall  receive  better  treatment  in  tolls  than  the  ships 
of  other  owners. 

Now,  let  me  call  attention  to  some  of  the  declarations. 
You  have  read  them  all;  they  are  not  new  in  this  debate;  but 
I  beg  you  to  consider  them  as  a  whole  and  consider  the  posi- 
tion in  which  we  stand  with  reference  to  them  as  a  series 
unbroken  and  unvarying.  In  1826,  Henry  Clay,  Secretary 
of  State,  said: 


PANAMA  CANAL  TOLLS  261 

If  a  canal  across  the  Isthmus  be  opened  so  as  to  admit  of  the  passage 
of  sea  vessels  from  ocean  to  ocean,  the  benefits  of  it  ought  not  to  be  exclu- 
sively appropriated  to  any  one  nation,  but  should  be  extended  to  all  parts 
of  the  globe  upon  the  payment  of  a  just  compensation  or  reasonable  tolls. 

In  a  resolution  of  the  Senate  in  1835: 

The  construction  of  a  ship  canal  across  the  Isthmus  which  connects 
North  and  South  America,  and  of  securing  forever  by  such  stipulations 
the  free  and  equal  right  of  navigating  such  canal  to  all  such  nations  — 

is  recommended  as  the  subject  of  negotiation,  "free  and 

equal  right  to  all  such  nations.'* 

In  a  resolution  of  the  House  in  1839: 

For  the  purpose  of  ascertaining  the  practicability  of  effecting  a  com- 
munication between  the  Atlantic  and  Pacific  Oceans  by  the  construction 
of  a  ship  canal  across  the  Isthmus  and  of  securing  forever,  by  suitable 
treaty  stipulations,  the  free  and  equal  right  of  navigating  such  canal  to 
all  nations  — 

is  recommended. 

In  the  overtures  by  the  United  States  to  Great  Britain 
which  resulted  in  the  making  of  the  Clayton-Bulwer  Treaty 
Mr.  Rives  said  to  Lord  Palmerston  in  1849: 

That  the  United  States  sought  no  exclusive  privilege  or  preferential 
right  of  any  kind  in  regard  to  the  proposed  communication,  and  their 
sincere  wish,  if  it  should  be  foimd  practical,  was  to  see  it  dedicated  to  the 
common  use  of  all  nations  on  the  most  liberal  terms  and  a  footing  of 
perfect  equality  for  all. 

That  the  United  States  would  not  if  they  could  obtain  any  exclusive 
right  or  privilege  in  a  great  highway  which  naturally  belongs  to  all  man- 
kind. 

In  the  Clayton-Bulwer  Treaty  of  1859,  article  6,  we  find 
And  the  contracting  parties  — 

the  United  States  and  Great  Britain  — 

likewise  agree  that  each  shall  enter  into  treaty  stipulations  with  such  of 
the  Central  American  states  as  they  may  deem  advisable,  for  the  purpose 
of  more  effectually  carrying  out  the  great  design  of  this  convention, 
namely,  that  of  constructing  and  maintaining  the  said  canal  as  a  ship 
communication  between  the  two  oceans  for  the  benefit  of  mankind,  on 
equal  terms  to  all,  and  of  protecting  the  same. 


262  INTERNATIONAL  SUBJECTS 

In  1858,  Secretary  Cass,  in  the  utterance  which  I  have  just 
read  from  the  January  4,  1904,  message  of  President  Roose- 
velt. 

In  1881,  Secretary  Blaine.  Mr.  President,  this  utterance 
is  of  special  significance,  because  it  was  the  first  serious  over- 
ture to  Great  Britain  to  bring  about  that  abrogation  of  the 
Clayton-Bulwer  Treaty  and  the  substitution  of  a  canal  under 
the  sole  auspices  of  the  United  States,  which  has  been  realized 
in  the  Hay-Pauncefote  Treaty.  Mr.  Blaine,  on  June  24, 1881, 
writes  to  the  American  minister  to  open  negotiations  with 
Great  Britain  for  obviating  the  objections  in  the  Clayton- 
Bulwer  Treaty.    He  says: 

There  has  never  been  the  slightest  doubt  on  the  part  of  the  United 
States  as  to  the  purpose  or  extent  of  the  obUgation  then  assumed  — 

that  is,  in  the  Colombian  treaty  of  1846  — 

by  which  it  became  surety  aUke  for  the  free  transit  of  the  world's  com- 
merce over  whatever  land-way  or  water-way  might  be  opened  from  sea 
to  sea,  and  for  the  protection  of  the  territorial  rights  of  Colombia  from 
aggression  or  interference  of  any  kind. 

He  then  proceeds  to  say  that  the  President  deems  it  due  to 
frankness  to  suggest  a  new  arrangement  with  Great  Britain. 
He  says: 

Nor,  in  time  of  peace,  does  the  United  States  seek  to  have  any  exclusive 
privileges  accorded  to  American  ships  in  respect  to  precedence  or  tolls 
through  an  interoceanic  canal  any  more  than  it  has  sought  like  privileges 
for  American  goods  in  transit  over  the  Panama  Railway,  under  the  exclu- 
sive control  of  an  American  corporation.  The  extent  of  the  privileges  of 
American  citizens  and  ships  is  measurable  under  the  treaty  of  1846  by 
those  of  Colombian  citizens  and  ships.  It  would  be  our  earnest  .desire  and 
expectation  to  see  the  world's  peaceful  commerce  enjoy  the  same  just, 
liberal,  and  rational  treatment. 

In  the  following  letter  of  November  19, 1881,  he  lays  down 
the  policy  of  the  United  States  almost  exactly  as  it  was 
worked  out  by  the  negotiators  in  the  Hay-Pauncefote  Treaty 
now  in  existence.    He  lays  it  down  to  Great  Britain,  and  this 


PANAMA  CANAL  TOLLS  263 

utterance  of  Secretary  Blaine  was  the  main  expression  of 
American  policy  which  Mr.  Hay,  Mr.  White,  Mr.  Choate, 
and  Mr.  Roosevelt  fomid  before  them  to  follow  in  making 
this  treaty.    Let  me  read  it: 

Li  assuming  as  a  necessity  the  political  control  of  whatever  canal  or 
canals  may  be  constructed  across  the  Isthmus,  the  United  States  will  act 
iu  entire  harmony  with  the  Governments  within  whose  territory  the 
canals  shall  be  located.  Between  the  United  States  and  the  other  Ameri- 
can republics  there  can  be  no  hostihty,  no  jealousy,  no  rivalry,  no  distrust. 
This  Government  entertains  no  design  in  connection  with  this  project  for 
its  own  advantage  which  is  not  also  for  the  equal  or  greater  advantage 
of  the  coimtry  to  be  directly  and  inunediately  affected.  Nor  does  the 
United  States  seek  any  exclusive  or  narrow  commercial  advantage.  It 
frankly  agrees  and  will  by  pubUc  proclamation  declare  at  the  prop>er  time, 
in  conjunction  with  the  republic  on  whose  soil  the  canal  may  be  located, 
that  the  same  rights  and  privileges,  the  same  tolls  and  obligations  for  the 
use  of  the  canal,  shall  apply  with  absolute  impartiality  to  the  merchant 
marine  of  every  nation  on  the  globe.  And  equally  in  time  of  peace  the 
harmless  use  of  the  canal  shall  be  freely  granted  to  the  war  vessels  of 
other  nations.  In  time  of  war,  aside  from  the  defensive  use  to  be  made 
of  it  by  the  country  in  which  it  is  constructed  and  by  the  United  States, 
the  canal  shall  be  impartially  closed  against  the  war  vessels  of  all 
beUigerents. 

It  is  the  desire  and  determination  of  the  United  States  that  the  canal 
shall  be  used  only  for  the  development  and  increase  of  p>eacef ul  conunerce 
among  all  the  nations,  and  shall  not  be  considered  a  strategic  point  in 
warfare  which  may  tempt  the  aggression  of  belligerents  or  be  seized  under 
the  compulsions  of  mihtary  necessity  by  any  of  the  great  powers  that  may 
have  contests  in  which  the  United  States  has  no  stake  and  will  take  no 
part. 

Mr.  Blaine  went  out  of  office;  other  interests  arose  —  the 
Venezuelan  controversy  with  Great  Britain,  the  progress  of 
construction  by  the  De  Lesseps  Company,  which  seemed  for 
a  time  to  bid  fair  to  produce  a  canal  across  the  Isthmus  of 
Panama,  the  Spanish  War,  all  intervened,  and  these  negotia- 
tions languished  and  were  intermitted  until  Mr.  Hay,  in  1898, 
reopened  the  subject  with  this  declaration  of  Mr.  Blaiae  still 
standing,  declaring  what  the  United  States  would  do  if 
England  would  give  to  her  the  same  sole  control  which  she 


264  INTERNATIONAL  SUBJECTS 

did  give  in  the  Hay-Pauneef ote  Treaty.  How  could  the  nego- 
tiators intend  anything  else  in  the  words  they  used  than  that 
same  large  equality  which  the  United  States  had  thus  already 
offered  formally  and  solemnly  ? 

In  1885,  in  his  message  of  December  8,  Mr.  Cleveland  says 
to  Congress: 

Whatever  highway  may  be  constructed  across  the  barrier  dividing  the 
two  greatest  maritime  areas  of  the  world  must  be  for  the  world's  benefit  — 
a  trust  for  mankind,  to  be  removed  from  the  chance  of  domination  by 
any  single  power,  nor  become  a  point  of  invitation  for  hostilities  or  a  prize 
for  warlike  ambition. 

In  1898,  Mr.  Hay,  in  reopening  the  negotiations  which  Mr. 

Blaine  had  begun,  instructs  Mr.  White  to  say: 

The  President  thinks  it  is  more  judicious  to  approach  the  British 
Government  in  a  frank  and  friendly  spirit  of  mutual  accommodation,  and 
to  ask  whether  it  may  not  be  possible  to  secure  such  modification  of  the 
provisions  of  the  Clayton-Bxilwer  Treaty  as  to  admit  such  action  by  the 
Government  of  the  United  States  as  may  render  possible  the  accomplish- 
ment of  a  work  which  will  be  for  the  benefit  of  the  entire  civilized  world. 
The  President  hopes  he  may  take  it  for  granted  that  the  British  Govern- 
ment not  only  have  no  wish  to  prevent  the  accompUshment  of  this  great 
work,  but  that  they  feel  a  hvely  interest  in  it  and  appreciate  the  fact  that 
the  benefits  of  its  successful  achievement  will  be  to  the  advantage  not 
only  of  England  and  America  but  of  all  commercial  nations. 

We  know  that  the  answer  to  that  by  Lord  Salisbury  was 
that  he  would  be  favorable  to  such  a  modification  of  the 
treaty  relations,  provided  that  the  vessels  of  all  nations  could 
use  the  canal  on  terms  of  equality. 

In  the  year  1900,  when  the  first  Hay-Pauncefote  Treaty 

came  before  the  Senate,  the  report  of  the  Committee  on 

Foreign  Relations,  commonly  spoken  of  as  the  Davis  report, 

a  very  able,  very  thorough,  very  careful  consideration  of  the 

whole  subject,  says: 

It  is  not  reasonable  to  suppose  that  Nicaragua  and  Costa  Rica  would 
grant  to  the  United  States  the  exclusive  control  of  a  canal  through  those 
States  on  terms  less  generous  to  the  other  maritime  nations  than  those 
prescribed  in  the  great  act  of  October  28,  1888; 


PANAMA  CANAL  TOLLS  265 

referring  to  the  Suez  Canal  convention  — 

or  if  we  could  compel  them  to  give  us  such  advantages  over  other  nations 
it  would  not  be  creditable  to  our  coimtry  to  accept  them. 

That  our  Government  or  our  jieople  will  fiu-nish  the  money  to  build 
the  canal  presents  the  single  question  whether  it  is  profitable  to  do  so. 
If  the  canal,  as  property,  is  worth  more  than  its  cost,  we  are  not  called 
on  to  divide  the  profits  with  other  nations.  K  it  is  worth  less  and  we  are 
compelled  by  national  necessities  to  build  the  canal,  we  have  no  right  to 
call  on  other  nations  to  make  up  the  loss  to  us.  In  any  view,  it  is  a  ven- 
ture that  we  will  enter  u|X)n  if  it  is  to  our  interest,  and  if  it  is  otherwise 
we  will  withdraw  from  its  further  consideration. 

The  Suez  Canal  makes  no  discrimination  in  its  tolls  in  favor  of  its 
stockholders;  and,  taking  its  profits  or  the  half  of  them  as  our  basis  of 
calculation,  we  will  never  find  it  necessary  to  diflferentiate  our  rates  of 
toll  in  favor  of  our  own  i)eople  in  order  to  secure  a  very  great  profit  on 
the  investment. 

Li  1904,  in  the  message  of  President  Roosevelt  from  which 
I  have  already  read,  submitting  the  Hay-Pauncef  ote  Treaty 
to  the  Senate,  is  the  last  authoritative  and  unmistakable 
declaration  of  the  public  service  for  all  the  world  which  the 
United  States  undertook  in  building  the  Panama  Canal. 

Now,  Mr.  President,  the  common  law  of  England  and 
America,  the  public  policy  especially  of  America  at  the  very 
time  this  treaty  was  being  negotiated,  enforced  with  unspar- 
ing rigor  the  duty  of  equal  charges  and  equal  service  by  all 
public  utilities  to  all  the  public  which  they  were  to  serve,  and 
in  the  face  of  this  long  series  of  public  declarations  by  the 
Government  of  the  United  States  committing  itself  to  that 
relation,  the  relation  of  the  builder  and  operator  of  a  public 
utility  for  all  the  world,  the  makers  of  this  treaty  could  not 
honorably  have  used  words  with  any  other  meaning  than  the 
meaning  of  the  large  equality  which  they  say  they  meant 
these  words  should  have. 

There  is  another  reason.  The  kind  of  equality  which  the  ne- 
gotiators intended  —  that  is,  an  equality  in  which  the  treat- 
ment of  American  citizens  is  made  the  standard  for  the 


266  INTERNATIONAL  SUBJECTS 

treatment  of  foreign  citizens  —  had  during  all  the  history  of 
the  Isthmian  Canal  efforts  been  the  standard  sought  for  in 
negotiations  and  treaties.  That  kind  of  equality  was  the 
standard  adopted  by  the  public  policy  of  the  United  States 
for  all  similar  enterprises.  It  was  customary ;  it  was  uniform ; 
it  was  natural  for  negotiators  of  a  treaty  relating  to  a  canal. 
Let  me  illustrate  that  by  referring  to  the  initial  treaty  on  this 
subject,  the  treaty  of  New  Granada  of  1846.  When  the 
American  negotiators  making  that  treaty  dealt  with  the  sub- 
ject of  a  railroad  and  canal,  what  kind  of  equality  did  they 
stipulate  for  ?    Why,  this: 

The  Government  of  New  Granada  guarantees  to  the  Government 
of  the  United  States  that  the  right  of  way  or  transit  across  the  Isthmus  of 
Panama  upon  any  modes  of  communication  that  now  exist,  or  that  may 
be  hereafter  constructed,  shall  be  open  and  free  to  the  Government  and 
citizens  of  the  United  States,  and  for  the  transportation  of  any  articles  of 
produce,  manufactures,  or  merchandise  of  lawful  conunerce  belonging  to 
the  citizens  of  the  United  States;  that  no  other  tolls  or  charges  shall  be 
levied  or  collected  upon  the  citizens  of  the  United  States  or  their  said 
merchandise  thus  passing  over  any  road  or  canal  that  may  be  made  by 
the  Government  of  New  Granada  or  by  the  authority  of  the  same  than  is, 
under  like  circumstances,  levied  upon  and  collected  from  the  Granadian 
citizens. 

The  message  of  President  Polk  transmitting  this  New  Gra- 
nada treaty  of  1846  to  Congress  dwells  especially  upon  the 
assurance  to  citizens  of  the  United  States  of  equal  charges 
and  equal  facilities  in  the  use  of  railroad  and  canal  with 
citizens  of  New  Granada. 

I  go  back  again  to  the  Clayton-Bulwer  Treaty  of  1850. 
There  is  no  doubt  about  the  kind  of  equahty  which  the  nego- 
tiators considered  it  to  be  valuable  to  get,  useful  to  get, 
natural  to  get. 

Article  1  of  that  treaty  provides  that  neither  Government 
shall  undertake  any  control  or  make  any  fortifications,  make 
any  effort  "  for  the  purpose  of  acquiring  or  holding,  directly 
or  indirectly,  for  the  citizens  or  subjects  of  the  one,  any 


PANAMA  CANAL  TOLLS  267 

rights  or  advantage  in  regard  to  commerce  or  navigation 
through  the  said  canal  which  shall  not  be  offered  on  the  same 
terms  to  the  citizens  or  subjects  of  the  other." 

Article  5  provides  that  protection  may  be  withdrawn  if  the 
company  which  builds  the  canal  shall  make  "  unfair  dis- 
criminations in  favor  of  the  commerce  of  one  of  the  contract- 
ing parties  over  the  commerce  of  the  other." 

Article  6  uses  as  interchangeable  terms  the  expression  "  on 
equal  terms  to  all,"  and  these  provisions  for  measuring  the 
rights  of  the  citizens  of  one  country  by  the  rights  accorded  to 
the  citizens  of  the  other.    They  are  used  interchangeably. 

Article  8  provides  that  — 

It  is  always  understood  by  the  United  States  and  Great  Britain  that 
the  parties  constructing  or  owning  the  canal  shall  impose  no  other  charges 
or  conditions  of  traflSc  thereupon  than  the  aforesaid  Governments  shall 
approve  of  as  just  and  equitable,  and  that  the  same  canals  or  railways, 
being  open  to  the  citizens  and  subjects  of  the  United  States  and  Great 
Britain  on  equal  terms,  shall  also  be  open  on  like  terms  to  the  citizens  and 
subjects  of  every  other  state. 

You  will  perceive,  sir,  that  the  terms  on  which  citizens  of 
other  countries  were  to  be  allowed  to  come  in  were  not  terms 
of  the  most-favored  nations  as  among  themselves.  They 
were  on  like  terms  with  those  which  existed  between  Great 
Britain  and  the  United  States;  that  is  to  say,  each  other 
country  which  came  in  and  adhered  to  this  Clayton-Bulwer 
Treaty  was  to  have  the  rights  of  its  citizens  measured  by  the 
rights  accorded  to  the  citizens  of  the  United  States  and  to  the 
citizens  of  Great  Britain. 

In  our  treaty  with  Great  Britain  in  1854,  the  reciprocity 
treaty  of  1854  — 

It  is  agreed  that  the  citizens  and  inhabitants  of  the  United  States  shall 
have  the  right  to  navigate  the  River  St.  Lawrence,  and  the  canals  in 
Canada  used  as  the  means  of  communicating  between  the  Great  Lakes 
and  the  Atlantic  Ocean,  with  their  vessels,  boats,  and  crafts,  as  fully  and 
freely  as  the  subjects  of  Her  Britannic  Majesty,  subject  only  to  the  same 


268  INTERNATIONAL  SUBJECTS 

tolls  and  other  assessments  as  now  are,  or  may  hereafter  be,  exacted  of 
Her  Majesty's  said  subjects.  .  .  . 

It  is  further  agreed  that  British  subjects  shall  have  the  right  freely  to 
navigate  Lake  Michigan  with  their  vessels,  boats,  and  crafts  so  long  as 
the  privilege  of  navigating  the  River  St.  Lawrence,  secured  to  American 
citizens  by  the  above  clause  of  the  present  article,  shall  continue;  and 
the  Government  of  the  United  States  further  engages  to  iu*ge  upon  the 
State  governments  to  seciu-e  to  the  subjects  of  Her  Britannic  Majesty 
the  use  of  the  several  State  canals  on  terms  of  equality  with  the  inhabitants 
of  the  United  States. 

We  made  a  treaty  with  Nicaragua  in  1867,  under  which, 
then  expecting  the  canal  to  be  through  Nicaraguan  territory, 
it  was  provided  that  — 

The  repubUc  of  Nicaragua  hereby  grants  to  the  United  States,  and 
to  their  citizens  and  property,  the  right  of  transit  between  the  Atlantic 
and  Pacific  Oceans  through  the  territory  of  that  republic,  on  any  route 
of  communication,  natural  or  artificial,  whether  by  land  or  by  water, 
which  may  now  or  hereafter  exist  or  be  constructed  under  the  authority 
of  Nicaragua,  to  be  used  and  enjoyed  in  the  same  manner  and  upon  equal 
terms  by  both  repubUcs  and  their  respective  citizens. 

That  treaty  further  provided: 

And  no  higher  or  other  charges  or  tolls  shall  be  imposed  on  the  con- 
veyance or  transit  of  persons  and  prop>erty  of  citizens  or  subjects  of  the 
United  States,  or  of  any  other  country,  across  the  said  routes  of  communi- 
cation, than  are  or  may  be  imposed  on  the  persons  and  property  of  citizens 
of  Nicaragua. 

In  1868,  Mr.  Seward  made  a  treaty  with  Colombia,  which 
was  never  ratified,  in  which  the  provision  originally  proposed 
by  the  United  States  was: 

That  the  tariff  of  tolls  and  freights  shall  be  on  the  basis  of  perfect 
equality  for  both  nations  and  for  all  other  nations  who  shall  be  at  peace 
both  with  the  United  States  of  America  and  the  United  States  of  Colombia. 

Colombia  wished  that  provision  to  apply  to  both  times  of 
war  and  of  peace;  and  accordingly  it  was  modified  and  came 
into  the  completed  treaty,  which  was  submitted  to  the  Senate 
in  this  form: 


PANAMA  CANAL  TOLLS  269 

The  Government  of  the  United  States  of  America  shall  establish  a 
tarifiF  of  tolls  and  freights  for  the  said  canal  on  a  basis  of  perfect  equality 
for  all  nations,  whether  in  time  of  peace  or  war. 

Li  1870,  another  treaty  was  made  with  Colombia,  in  which 
the  provision  was  that  the  United  States  was  to  establish, 
just  as  it  does  here  in  the  Hay-Pauncefote  Treaty,  a  tariff  of 
charges  on  merchant  vessels  and  vessels  of  war  upon  the 
basis  of  perfect  equality  at  all  times  among  all  nations,  with 
no  other  distinctions  than  are  contained  in  the  preceding 
article. 

In  the  preceding  article  the  distinction  is  that  the  parties  to 
the  treaty  —  that  is,  Colombia  and  the  United  States  —  re- 
serve to  themselves  the  right  of  passing  ships  of  war,  troops, 
and  munitions  of  war  through  the  canal  at  all  times  free  of 
charge  of  any  description. 

In  1871,  in  the  great  Treaty  of  Washington  of  that  year, 
we  enlarged  the  stipulation  regarding  the  use  of  American 
and  Canadian  canals,  and  the  United  States  stipulated  defi- 
nitely that  — 

The  subjects  of  Her  Britannic  Majesty  shall  enjoy  the  use  of  the  St. 
Clair  Flats  Canal  on  terms  of  equality  with  the  inhabitants  of  the  United 
States. 

We  have  heard  much  discussion  here  of  the  controversy 
which  arose  between  the  United  States  and  Great  Britain 
over  the  application  of  that  paragraph  of  the  Treaty  of  Wash- 
ington giving  equality  to  citizens  of  the  two  countries  in  the 
use  both  of  American  and  Canadian  canals.  Several  times 
the  discussion  has  run  into  an  attack  upon  the  Canadian 
treatment  of  the  subject,  into  a  declaration  that  Canada  did 
not  yield  gracefully  or  easily;  that  Canada  did  not  yield  until 
measures  of  retaliation  were  proposed.  That  is  quite  irrele- 
vant to  the  bearing  of  this  treaty  and  the  discussion  upon  the 
question  that  is  before  us  and  upon  the  treatment  of  this 
subject  by  the  makers  of  this  treaty. 


270  INTERNATIONAL  SUBJECTS 

What  position  did  we  take  ?  What  was  the  attitude  of  the 
United  States  toward  the  subject  of  equahty  between  the 
United  States  and  Canada  under  this  treaty  stipulating  for 
equahty  ?  That  is  the  important  question  —  not  whether 
Great  Britain  was  right  or  wrong;  not  whether  Canada  did 
right  or  wrong;  not  whether  .they  were  willing  or  unwilling; 
but  what  did  the  United  States  say  and  what  position  could 
the  United  States  take  consistently  upon  this  subject  of  the 
equal  use  of  the  canals  ? 

We  are  not  left  entirely  to  the  treatment  of  canals  for  a 
guide  as  to  the  public  policy  of  the  United  States.  When 
this  treaty  was  negotiated  it  had  long  been  the  general  pubUc 
policy  of  the  United  States  to  accord  to  all  other  nations  in  all 
ports  and  waters  of  the  United  States  rights  in  respect  of  serv- 
ice and  of  charges,  measured  by  the  service  and  the  charges  to 
American  citizens.  The  act  of  Congress  of  June  26,  1884,  as 
amended  June  19,  1886,  reads: 

Provided,  That  the  President  of  the  United  States  shall  suspend  the 
collection  of  so  much  of  the  duty  herein  imposed  on  vessels  entered  from 
any  foreign  port  as  may  be  in  excess  of  the  tonnage  and  lighthouse  dues 
or  other  equivalent  tax  or  taxes  imposed  in  said  port  on  American  vessels 
by  the  Government  of  the  foreign  country  in  which  such  p)ort  is  situated, 
and  shall,  up>on  the  passage  of  this  act,  and  from  time  to  time  thereafter, 
as  often  as  it  may  become  necessary  by  reason  of  changes  in  the  laws  of 
the  foreign  coimtries  above  mentioned,  indicate,  by  proclamation,  the 
ports  to  which  such  suspension  shall  apply,  and  the  rate  or  rates  of  ton- 
nage duty,  if  any,  to  be  collected  under  such  suspension:  Provided  further, 
That  such  proclamation  shall  exclude  from  the  benefits  of  the  suspension 
herein  authorized  the  vessels  of  any  foreign  country  in  whose  ports  the 
fees  or  dues  of  any  kind  or  nature  imposed  on  vessels  of  the  United  States 
or  the  import  or  export  duties  on  their  cargoes  are  in  excess  of  the  fees, 
dues,  or  duties  imposed  on  the  vessels  of  the  country  in  which  such  port 
is  situated,  or  on  the  cargoes  of  such  vessels. 

I  say  that  was  the  public  pohcy  of  the  United  States  re- 
garding all  ports  and  waters  of  the  United  States,  and  it  was  a 
policy  toward  all  the  world.  A  controversy  arose  about  it. 
Canada  claimed  that  we  imposed  excessive  charges  upon  her 


PANAMA  CANAL  TOLLS  271 

vessels,  and  we  claimed  that  she  imposed  excessive  charges 
upon  ours.  A  correspondence  ensued,  and  on  February  18, 
1896,  Mr.  Olney,  then  Secretary  of  State,  wrote  to  Sir  JuHan 
Pauncefote  as  follows: 

The  understanding  of  the  Government  of  the  United  States  in  the 
matter  of  the  uniform  treatment  of  foreign  and  domestic  vessels  is  that 
charges  on  foreign  vessels  in  the  ports  of  the  United  States  should  be  no 
higher  than  those  imposed  on  vessels  of  the  United  States  in  the  ports  of 
this  country,  and  that  the  charges  imposed  on  American  vessek  in  foreign 
ports  should  be  no  higher  than  the  charges  imposed  on  the  vessels  native 
to  those  ports.  This  is  the  practice  of  this  Government,  and  it  is  in  accord 
with  nearly  all  of  its  treaties  of  commerce  and  navigation  with  foreign 
powers. 

The  fact  cited  in  the  Canadian  minute  that  the  charges  of  this  Govern- 
ment on  lake  ports  are  larger  than  those  imposed  by  the  Dominion  authori- 
ties will,  upon  more  mature  reflection,  I  am  confident,  be  regarded  as 
irrelevant,  since  those  charges  are  imposed  equally  on  American  and 
foreign  vessels. 

On  the  ninth  of  June  of  the  same  year  Sir  Julian  Pauncefote 
replied  to  Mr.  Olney  as  follows: 

Sir:  With  reference  to  my  note  of  the  twenty-first  of  February  last,  and 
to  previous  correspondence  respecting  the  alleged  discrimination  against 
United  States  vessels  in  Canadian  ports  on  the  Great  Lakes,  I  have  the 
honor  to  inform  you  that  the  Governor-General  of  Canada  has  approved 
a  minute  of  his  privy  council,  recommending  the  revocation  of  the 
regulations  complained  of  and  the  aboUtion  of  all  fees  hitherto  exacted 
from  vessels  navigating  inland  waters  when  entering  or  clearing  above 
Montreal. 

That  Sir  Julian  Pauncefote  was  the  Lord  Pauncefote  who, 
with  Mr.  Hay  and  Mr.  White,  negotiated  the  Hay-Paunce- 
fote  Treaty.  We  are  asked  to  believe  that  starting  with  the 
Clayton-Bulwer  convention,  which  gave  to  Great  Britain 
unquestioned  assurance  of  the  larger  and  more  valuable 
equality  of  her  vessels  with  the  vessels  of  American  citizens, 
in  a  negotiation  with  a  country  which  in  all  its  history  had 
insisted  regarding  all  canals  that  the  measure  of  equality 
should  be  the  measure  of  service  and  of  charges  to  its  national 


272  INTERNATIONAL  SUBJECTS 

citizens,  in  negotiating  with  a  country  which  had  just  com- 
pelled him  to  yield  that  equality  of  treatment  as  a  measure 
of  general  pubUc  policy,  he  abandoned  the  vantage  ground 
of  the  Clayton-Bulwer  Treaty  and  gave  up  that  basis  of 
equahty  without  one  word  in  the  negotiation,  without  dis- 
cussion, without  its  being  asked,  without  its  being  mentioned, 
without  his  knowing  it,  without  the  other  negotiators* 
knowing  it.    But  that  is  not  all. 

It  was  not  merely  the  immemorial  policy  of  the  United 
States  and  Great  Britain  regarding  all  canals;  it  was  not 
merely  the  general  public  poHcy  of  the  United  States  and 
Great  Britain  regarding  all  ports  and  waters,  but  it  was  the 
policy  of  the  United  States  regarding  trade  the  world  over, 
and  the  champion  and  protagonist  of  that  policy  was  John 
Hay.  At  the  very  time  that  he  was  negotiating  the  Hay- 
Pauncefote  Treaty  he  was  appealing  to  the  justice  of  all  the 
nations  of  the  world  for  the  "  open  door  "  in  China;  he  was 
appealing  to  them  in  the  interest  of  the  world's  commerce, 
in  the  interest  of  civilization  to  accord  in  all  their  possessions 
in  China,  what  ?  Favored-nation  treatment  ?  Oh,  no;  the 
same  treatment  that  they  accorded  to  their  own  citizens. 
Let  me  ask  you  to  attend  for  a  moment  to  things  that  John 
Hay  wrote  regarding  this  great  design,  the  accomplishment 
of  which  will  ever  stand  in  the  history  of  diplomacy  as  one  of 
the  proudest  contributions  of  America  to  the  progress  of 
civihzation.  On  September  6, 1899,  he  wrote  to  Mr.  Choate 
in  London: 

The  Government  of  Her  Britannic  Majesty  has  declared  that  its  policy 
and  its  very  traditions  precluded  it  from  using  any  privileges  which  might 
be  granted  it  in  China  as  a  weapon  for  excluding  commercial  rivals,  and 
that  freedom  of  trade  for  Great  Britain  in  that  Empire  meant  freedom  of 
trade  for  all  the  world  alike.  While  conceding  by  formal  agreements,  first 
with  Germany  and  then  with  Russia,  the  possession  of  "  spheres  of  in- 
fluence or  interest "  in  China,  in  which  they  are  to  enjoy  special  rights 
and  privileges,  more  especially  in  respect  of  railroads  and  mining  enter- 


PANAMA  CANAL  TOLLS  273 

prises.  Her  Britannic  Majesty's  Government  has  therefore  sought  to 
maintain  at  the  same  time  what  is  called  the  "  open-door  poUcy  "  to 
insiu-e  to  the  commerce  of  the  world  in  China  equality  of  treatment  within 
said  "  spheres  "  for  commerce  and  navigation. 

He  wrote  to  Ambassador  White  in  Germany,  September 
sixth,  the  same  date: 

Earnestly  desirous  to  remove  any  cause  of  irritation  and  to  insure  at 
the  same  time  to  the  commerce  of  all  nations  in  China  the  undoubted 
benefits  which  should  accrue  from  a  formal  recognition  by  the  various 
powers  claiming  "  spheres  of  interest "  that  they  shall  enjoy  perfect 
equahty  of  treatment  for  their  commerce  and  navigation  within  such 
"  spheres  "  the  Government  of  the  United  States  would  be  pleased  to  see 
ffis  German  Majesty's  Government  give  formal  assurances  and  lend  its 
cooperation  in  securing  like  assurances  from  the  other  interested  powers 
that  each  within  its  respective  sphere  of  whatever  influence.  .  .  . 

Third,  That  it  will  levy  no  higher  harbor  dues  on  vessels  of  another 
nationality  frequenting  any  port  in  such  "  sphere  "  than  shall  be  levied 
on  vessels  of  its  own  nationahty,  and  no  higher  railroad  charges  over  lines 
built,  controlled,  or  operated  within  its  "  sphere  "  on  merchandise  belong- 
ing to  citizens  or  subjects  of  other  nationahties  transported  through  such 
"  sphere  "  than  shall  be  levied  on  similar  merchandise  belonging  to  its 
own  nationals  transported  over  equal  distances. 

So  he  wrote  to  all  of  the  great  nations  of  the  world  an 
appeal  for  equal  treatment,  an  appeal  for  a  specific  stipula- 
tion to  secure  the  equal  treatment  that  no  higher  charges 
should  be  imposed  upon  the  citizens  of  any  other  country 
in  the  ports  and  waters  possessed  by  those  great  powers  in 
China  or  for  freight  or  passage  over  the  railroads  built  and 
controlled  by  them  than  were  imposed  upon  their  own  citi- 
zens. To  that  appeal  all  the  great  powers  of  the  world  re- 
sponded in  affirmance;  and  on  March  20, 1900,  Mr.  Hay  was 
able  to  issue  his  circular  of  instructions  to  all  the  ambassadors 
and  ministers  of  the  United  States  announcing  the  universal 
assent  of  the  world  to  that  great  principle  of  equality  — 
equality  measured  by  the  rights  of  the  citizens  of  the  nation 
granting  it  in  all  the  empire  of  China;  yet  we  are  asked  to 
beUeve  that  John  Hay  denied,  abjured,  repudiated  that 


274  INTERNATIONAL  SUBJECTS 

policy  of  civilization  in  regard  to  the  Panama  Canal  at  the 
very  moment  that,  through  the  same  agents,  he  was  enforcing 
the  policy  upon  the  same  countries;  and  that  he  did  it  without 
knowing  it. 

But,  Mr.  President,  we  are  not  left  to  inferences  which 
must  be  drawn  from  the  circumstances  that  I  have  men- 
tioned or  from  declarations  of  pubUc  policy  or  from  the  uni- 
form course  and  custom  of  treaty-making  regarding  canals 
and  regarding  public  waters  and  transportation.  There  is 
positive,  and  it  appears  to  me  conclusive,  aflSrmative  evi- 
dence that  the  negotiators  did  effectively  proceed  in  making 
this  treaty  in  accordance  with  the  honorable  obligation  of 
their  country  as  the  builder  and  maintainer  of  a  public  utiUty, 
as  the  champion  of  equal  commercial  rights  the  world  over. 

We  begin  the  consideration  of  the  express  provisions  lead- 
ing to  the  conclusion  that  the  larger  equahty  was  intended 
with  the  communication  of  the  Hay-Pauncefote  Treaty  to 
the  Senate.  Of  course,  we  are  all  f  amihar  with  the  terms  of 
the  preamble  preserving  the  general  principle  of  article  8 
of  the  Clayton-Bulwer  Treaty.  Let  me  read  them  again, 
however,  for  convenience  of  reference: 

The  United  States  of  America  and  His  Majesty  Edward  the  Seventh, 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  and  of  the  British 
dominions  beyond  the  seas.  King,  and  Emperor  of  India,  being  desirous 
to  facilitate  the  construction  of  a  ship  canal  to  connect  the  Atlantic  and 
Pacific  Oceans,  by  whatever  route  may  be  considered  expedient,  and  to 
that  end  to  remove  any  objection  which  may  arise  out  of  the  convention 
of  April  19,  1850,  commonly  called  the  Clayton-Bulwer  Treaty,  to  the 
construction  of  such  canal  imder  the  auspices  of  the  Government  of  the 
United  States,  without  impairing  the  "  general  principle  "  of  neutraliza- 
tion established  in  article  8  of  that  convention,  have  for  that  purpose 
appointed  as  their  plenipotentiaries.  .  .  . 

Now  we  are  told  that  the  language  of  a  treaty  or  of  a  con- 
tract or  of  a  statute  cannot  be  changed  by  the  preamble;  but 
what  is  the  purpose  of  a  preamble  ?  The  purpose  is  to  afford 
a  guide  to  the  interpretation  of  the  terms  of  the  treaty  or  of 


PANAMA  CANAL  TOLLS  275 

the  statute.  When  you  start  with  the  third  article  of  the 
Hay-Pauncefote  Treaty  and  have  a  debate  as  to  its  interpre- 
tation you  turn  to  the  preamble  and  you  find  there  a  guide 
intended  by  the  makers  of  the  treaty  to  enable  you  to  reach 
the  right  interpretation  upon  the  terms  of  the  third  article. 
But,  still  further  than  that,  the  idea  of  not  impairing  the 
general  principle  of  neutralization  is  carried  into  the  treaty 
itself,  for  in  article  4  — 

It  is  agreed  that  no  change  of  territorial  sovereignty  or  of  international 
relations  of  the  country  or  countries  traversed  by  the_before-mentioned 
canal  shall  affect  the  general  principle  of  neutralization  or  the  obligation 
of  the  high  contracting  parties  under  the  present  treaty. 

That  is,  repeating  in  the  fourth  article  as  being  a  part  of  the 
treaty  itself  the  words  of  the  preamble  that  the  obstacles 
of  the  Clayton-Bulwer  Treaty  are  to  be  removed  without 
impairing  the  general  principle  of  neutralization  estabhshed 
in  article  8  of  that  convention. 

This  preamble,  sir,  which  refers  to  the  general  principle  of 
neutralization  in  the  Clayton-Bulwer  Treaty  and  which  mani- 
festly is  designed  to  preserve  in  the  Hay-Pauncefote  Treaty 
something  of  the  Clayton-Bulwer  Treaty,  has  been  treated  in 
discussion  as  being  a  matter  of  not  very  much  importance. 
Not  so  the  view  of  the  negotiators  of  the  treaty.  Not  so  the 
view  of  anybody  connected  with  our  Government  at  the  time 
the  treaty  was  made,  for  you  will  perceive,  in  the  first  place, 
that  in  the  letters  of  transmittal  of  the  treaty  special  pains 
are  taken  to  have  it  understood  that  this  treaty  preserves 
unimpaired  something  which  is  called  the  general  priaiciple 
of  neutralization. 

Mr.  Hay,  in  transmitting  the  Hay-Pauncefote  Treaty  to 

the  President,  writes: 

I  submit  for  your  consideration  ...  a  convention  ...  to  remove  any 
objection  which  may  arise  out  of  the  .  .  .  Clayton-Bulwer  Treaty  .  .  . 
without  impairing  the  "  general  principle  "  of  neutralization  established 
in  article  8  of  that  convention. 


276  INTERNATIONAL  SUBJECTS 

President  Roosevelt,  in  transmitting  the  treaty  to  the 
Senate,  says: 

I  transmit,  for  the  advice  and  consent  of  the  Senate  to  its  ratification, 
a  convention  signed  November  18,  1901,  ...  to  remove  any  objection 
which  may  arise  out  of  the  convention  of  April  19,  1850,  ...  to  the 
construction  of  such  canal  imder  the  auspices  of  the  Government  of  the 
United  States  without  impairing  the  "  general  principle  "  of  neutralization 
established  in  article  8  of  that  convention. 

That  feature  of  the  Hay-Pauncefote  Treaty  is  dwelt  upon 
and  made  extraordinarily  prominent,  and  there  is  a  mani- 
fest feeling  that  the  Senate  ought  not  to  lose  sight  of  it  in 
considering  whether  it  shall  advise  the  ratification  of  the 
treaty. 

We  are  not  left  to  that,  however.  When  the  treaty  negotia- 
tions were  nearly  completed,  Mr.  Hay  wrote  to  Lord  Paunce- 
fote  September  2,  1901,  regarding  the  last  treaty  as  com- 
pared with  the  first  Hay-Pauncefote  Treaty,  which  failed  of 
ratification.    He  said: 

I  considered  the  adoption  by  the  Senate  without  change  of  the  pre- 
amble of  oiu-  former  treaty  — 

that  is,  the  first  Hay-Pauncefote  Treaty  — 

by  which  it  was  declared  that  the  general  principle  of  neutralization  estab- 
lished in  article  8  of  the  Clayton-Bulwer  convention  was  not  impaired 
thereby,  a  fortunate  circumstance,  as  it  enabled  us  in  passing  a  new  draft 
to  retain  the  imjjortant  utterance  in  the  preamble  in  the  same  form  to 
which  the  Senate  had  already  given  its  assent. 

Not  only  did  Mr.  Hay  regard  that  as  important,  but  the 

British  negotiators  regarded  it  as  highly  important.     On 

September  25, 1901,  Mr.  Choate  wrote  to  Mr.  Hay  as  follows: 

On  Monday,  the  twenty-third,  I  had  an  interview  with  Lord  Paunce- 
fote  and  tried,  as  I  had  before,  to  persuade  him  that  it  was  neither 
wise  nor  necessary  to  mar  your  article  4  by  the  addition  propKJsed  in  my 
cable  to  you.  But  he  thought,  as  he  did  before,  and  more  strongly 
than  he  did  before,  that  with  the  addition  Parliament  and  the  British 
press  and  pubhc  could  be  made  to  accept  the  treaty,  but  that  without  it 
they  could  not. 


PANAMA  CANAL  TOLLS  277 

Referring  to  article  4  as  it  now  appears  in  print  — 

He  thought  it  very  necessary  that  they  should  be  able  to  say  very  em- 
phatically that  although  they  had  abrogated  the  Clayton-BiJwer  Treaty 
they  had  preserved  the  principle  of  it. 

What  was  that  principle  ?  We  have  to  turn  to  the  Clay- 
ton-Bulwer  Treaty  again.  The  principle  of  neutralization  in 
the  eighth  article  of  the  Clayton-Bulwer  Treaty  is  to  be  pre- 
served unimpaired,  according  to  the  Hay-Pauncefote  Treaty; 
and  it  is  regarded  by  the  negotiators  upon  both  sides  as  a 
matter  of  great  importance.  Special  attention  is  called  to  it 
when  the  treaty  is  submitted  to  the  Senate.  Now,  let  me  go 
over  again  the  provisions  of  the  Clayton-Bulwer  Treaty. 

In  the  first  article  there  is  an  agreement  not  to  take  advan- 
tage of  any  alliance  or  any  connection  of  either  Government 
on  the  Isthmus  — 

for  the  purpose  of  acquiring  or  holding,  directly  or  indirectly,  for  the 
citizens  or  subjects  of  the  one  any  rights  or  advantages  in  regard  to  com- 
merce or  navigation  through  the  said  canal  which  shall  not  be  offered  on 
the  "same  terms  to  the  citizens  or  subjects  of  the  other. 

No  discriminations  are  to  be  made  in  favor  of  the  commerce 

of  the  one  against  the  commerce  of  the  other.    The  great 

design  of  the  convention  is  said  to  be,  in  article  6  — 

That  of  constructing  and  maintaining  the  said  canal  as  a  ship  com- 
munication between  the  two  oceans  for  the  benefit  of  mankind,  on  equal 
terms  to  all,  and  of  protecting  the  same. 

In  the  eighth  article  it  is  provided: 

The  Governments  of  the  United  States  and  Great  Britain  having  not 
only  desired,  in  entering  into  this  convention,  to  accomplish  a  particular 
object,  but  also  to  establish  a  general  principle,  they  hereby  agree  to 
extend  their  protection,  by  treaty  stipulations,  to  any  other  practicable 
communications,  whether  by  canal  or  railway,  across  the  isthmus  which 
connects  North  and  South  America,  and  esp)ecially  to  the  interoceanic 
communications,  should  the  same  prove  to  be  practicable,  whether  by 
canal  or  railway,  which  are  now  prop>osed  to  be  established  by  the  way  of 
Tehuantepec  or  Panama.  In  granting,  however,  their  joint  protection  to 
any  such  canals  or  railways  as  are  by  this  article  specified,  it  is  always 


278  INTERNATIONAL  SUBJECTS 

understood  by  the  United  States  and  Great  Britain  that  the  parties  con- 
structing or  owning  the  same  shall  impose  no  other  charges  or  conditions 
of  traffic  thereupjon  than  the  aforesaid  Governments  shall  approve  of  as 
just  and  equitable;  and  that  the  same  canals  or  railways,  being  open  to 
the  citizens  and  subjects  of  the  United  States  and  Great  Britain  on  equal 
terms,  shaU  also  be  open  on  like  terms  to  the  citizens  and  subjects  of  every 
other  state  which  is  willing  to  grant  thereto  such  protection  as  the  United 
States  and  Great  Britain  engage  to  afiford. 

What  is  the  principle  of  neutralization  contained  in  that 

article  ?    The  negotiators  understood  that  there  was  such  a 

principle  in  that  article,  for  they  say: 

Without  impairing  the  "  general  principle  of  neutralization  established 
in  article  8  "  of  that  convention. 

The  only  two  things  in  article  8  are  the  equality  of  service 
and  of  charge  between  the  vessels  of  the  United  States  and 
those  of  Great  Britain  and  the  extension  of  that  to  other 
countries  that  come  in  and  the  obligation  of  protection.  The 
great  object  of  the  negotiation  of  the  Hay-Pauncefote  Treaty 
was  to  take  over  to  the  United  States  alone  the  duty  and 
the  right  of  protection.  That  was  the  diflFerence  between  the 
Hay-Paimcefote  Treaty  and  the  Clayton-Bulwer  Treaty  — 
that  Great  Britain  was  to  surrender  the  right  of  protection, 
to  be  reheved  from  the  duty  of  protection  and  no  other  coun- 
tries were  to  be  permitted  to  come  in  and  exercise  the  right  of 
protection.  The  United  States  was  to  put  itself  on  the  plat- 
form that  Blaine  laid  down  in  1881,  as  the  sole  protector  of 
the  canal.  What,  then,  was  there  to  be  preserved  unim- 
paired in  the  eighth  article  of  the  Clayton-Bulwer  Treaty  ? 
Nothing  except  the  basis  of  equality;  equality  between  the 
United  States  and  Great  Britain,  equahty  measured  by  the 
treatment  of  the  nationals  of  one  country  for  the  nationals  of 
the  other.    Nothing  else  was  left  to  be  preserved  unimpaired. 

Observe  that  the  term  used  by  the  preamble  and  by  the 
fourth  article  of  the  Hay-Pauncefote  Treaty,  is  not  "neutral- 
ity," but  "  neutralization."    They  are  both  well-understood 


PANAMA  CANAL  TOLLS  279 

and  well-defined  terms.  By  all  writers  upon  international 
law,  in  all  the  literature  of  international  law,  the  distinction 
is  well  understood.  Neutralization  is  the  contractual  ar- 
rangement which  produces  neutraUty.  The  end  to  be  at- 
tained is  neutrality.  The  means  by  which  it  is  obtained  is 
neutralization. 

Now,  let  us  go  back  to  the  Clayton-Bulwer  Treaty.  The 
only  thing  in  the  eighth  article  that  was  not  expressly  and 
intentionally  destroyed  was  the  equality  stipulated  in  the 
eighth  article,  stipulated  in  the  fifth  article  and  the  sixth 
article  and  the  first  article,  and  carried  into  the  eighth  article 
by  reference.  That  equality  was  the  principle  upon  which 
this  canal  was  to  be  made  neutral.  There  is  no  other  mean- 
ing that  you  can  find  for  it,  and  that  is  what  was  to  be 
preserved  unimpaired. 

There  is  no  need  of  speculating  about  it.  Fortunately,  we 
are  told  by  the  negotiators  themselves  what  they  meant.  I 
read  from  a  letter  of  Mr.  Choate  to  Mr.  Hay,  dated  August 
20,  1901,  when  this  negotiation  had  far  progressed  and  this 
second  treaty  was  in  form,  and  there  was  nothing  at  all  left 
to  be  discussed  which  affected  the  subject.  When  I  read 
these  words,  I  want  you  to  remember  that  you  must  construe 
the  equality  provision  of  the  Hay-Pauncefote  Treaty  as 
being  the  very  equality  estabHshed  in  the  eighth  article  of 
the  Clayton-Bulwer  Treaty,  unless  you  can  find  some  other 
meaning  in  the  minds  of  the  makers  of  this  treaty. 

Now  let  me  read  what  Mr.  Choate  said : 

As  article  8  stands  in  the  C.-B.  treaty  — 
the  Clayton-Bulwer  Treaty  — 

it  undoubtedly  contemplates  further  treaty  stipulations  —  not  "  these  " 
treaty  stipiJations,  in  case  any  other  interoceanic  route,  either  by  land 
or  by  water,  should  "  prove  to  be  practicable,"  and  it  proceeds  to  state 
what  the  general  principle  to  be  applied  is  to  be,  viz.:  no  other  charges 
or  conditions  of  traffic  thereon  "  than  are  just  and  equitable,"  and  that 


280  INTERNATIONAL  SUBJECTS 

said  "  canals  or  railways  "  being  open  to  the  subjects  and  citizens  of 
Great  Britain  and  the  United  States  on  equal  terms  shall  also  be  open 
on  like  terms  to  the  subjects  and  citizens  of  other  states,  which  I  believe 
to  be  the  real  general  principle  of  neutralization  (if  you  choose  to  call  it  so) 
intended  to  be  asserted  by  this  eighth  article  of  the  C.-B.  Treaty. 

That  is  from  Mr.  Choate  to  Mr.  Hay.  That  is  from  the 
man  who  put  those  words  mto  the  Hay-Pauncef ote  Treaty  for 
us  to  the  man  who  authorized  the  signing  of  the  Hay-Paunce- 
fote  Treaty  for  us,  and  that  is  what  he  meant.  That  is  what 
he  said  over  his  official  signature  he  meant  by  preserving 
unimpaired  in  the  Hay-Pauncefote  Treaty  the  general  prin- 
ciple of  neutralization  established  in  the  eighth  article  of  the 
Clayton-Bulwer  Treaty;  and  no  power  of  reasoning  or  of 
sophistry  can  justify  the  American  Government  in  putting 
upon  the  Hay-Pauncefote  Treaty  any  other  meaning  than  the 
meaning  there  declared. 

The  negotiators  on  the  other  side  thought  the  same  thing 

about  it.    Mr.  Choate,  on  September  twenty-first,  reports  to 

Mr.  Hay  a  conversation  he  had  had  with  Lord  Pauncefote. 

He  says: 

He  again  insisted,  as  Lord  Lansdowne  had  insisted,  that  they  must 
have  something  to  satisfy  Parliament  and  the  British  public  that  in  giving 
up  the  Clayton-Bulwer  Treaty  they  had  retained  and  reasserted  the 
"  general  principle  "  of  it,  that  the  canal  should  be  technically  neutral 
and  should  be  free  to  all  nations  on  terms  of  equality,  and  especially  that 
in  the  contingency  supposed,  of  the  territory  on  both  sides  of  the  canal 
becoming  ours,  the  canal,  its  neutrality,  its  being  free  and  open  to  all 
nations  on  equal  terms  should  not  be  thereby  aflfected. 

There  you  perceive  that  Lord  Pauncefote's  paraphrase  of 
the  terms  of  the  eighth  section  of  the  Clayton-Bulwer  Treaty 
is  — 
should  be  free  to  all  nations  on  terms  of  equality. 

It  is  the  provision  for  equality  in  the  Clayton-Bulwer 
Treaty  which  he  regarded  as  the  general  principle  established 
in  the  eighth  article. 


PANAMA  CANAL  TOLLS  281 

Let  me  read  it  again: 

They  must  have  something  to  satisfy  Parliament  and  the  British  public 
that  in  giving  up  the  Clayton-Bulwer  Treaty  they  had  retained  and 
reasserted  the  "  general  principle  "  of  it,  that  the  canal  should  be  techni- 
cally neutral  and  should  be  free  to  all  nations  on  terms  of  equality. 

What  that  equality  was,  you  find  in  the  eighth  article  of  the 

Clayton-Bulwer  Treaty. 

Mr.  Hay,  in  his  letter  to  Senator  CuUom  at  the  time  the 

treaty  was  under  consideration  by  the  Senate,  says: 

He  (the  President)  not  only  was  willing  but  earnestly  desired  that  the 
"  general  principle  "  of  neutralization  referred  to  in  the  preamble  of  this 
treaty  and  in  the  eighth  article  of  the  Clayton-Bulwer  Treaty  should  be 
perpetually  applied  to  this  canal.  This,  in  fact,  had  always  been  insisted 
upon  by  the  United  States. 

There  was  no  change  in  policy. 

He  recognized  the  entire  justice  and  propriety  of  the  demand  of  Great 
Britain  that  if  she  was  asked  to  surrender  the  material  interest  secured 
by  the  first  article  of  that  treaty,  which  might  result  at  some  indefinite 
future  time  in  a  change  of  sovereignty  in  the  territory  traversed  by  the 
canal,  the  "  general  principle  "  of  neutralization  as  applied  to  the  canal 
should  be  absolutely  secured. 

Whatever  else  the  Hay-Paimcef  ote  Treaty  means,  it  means 
to  secure  absolutely  the  general  principle  of  neutralization 
contained  in  the  eighth  article  of  the  Clayton-Bulwer  Treaty, 
which  was,  according  to  the  understanding  of  the  makers  of 
the  Hay-Pauncefote  Treaty,  the  absolute  equality  of  the 
ships,  the  citizens  and  the  subjects  of  all  nations  with  the 
ships  and  the  citizens  of  the  United  States  and  of  Great 
Britain;  and  we  are  not  at  liberty  to  spell  out  any  different 
meaning  of  the  Hay-Pauncefote  Treaty. 

In  the  face  of  these  declarations  we  are  asked  to  find  a 
meaning  of  this  treaty  which  ascribes  to  Great  Britain  the 
intent  to  abandon  everything  there  was  in  the  eighth  article 
of  the  Clayton-Bulwer  Treaty.  We  are  asked,  in  the  face  of 
Mr.  Choate's  declarations  to  Mr.  Hay,  and  Mr.  Hay's  to  the 


282  INTERNATIONAL  SUBJECTS 

President  and  to  the  Senate,  to  ascribe  to  this  treaty  an  in- 
tention to  take  away  from  Great  Britain  everything  there  was 
left  of  equality  in  the  eighth  article  of  the  Clayton-Bulwer 
Treaty;  and  we  are  asked  to  suppose  that  that  was  done 
without  its  being  mentioned  in  the  negotiations,  without 
one  word,  without  our  asking  it  of  Great  Britain  or  Grea^t 
Britain's  offering  it  to  us,  without  its  being  discussed,  without 
its  being  proposed  or  broached  in  any  way. 

As  the  Senator  from  North  Dakota  [Mr.  McCumber]  sug- 
gests to  me.  Great  Britain  could  have  surrendered  much 
more  easily.  All  she  need  have  done  was  to  say:  "  We 
consent  to  the  abrogation  of  the  Clayton-Bulwer  Treaty." 

That,  however,  is  not  the  only  thing.  The  third  article  of 
the  Hay-Pauncefote  Treaty  provides: 

The  United  States  adopts,  as  the  basis  of  the  neutralization  of  such 
ship  canal,  the  following  rules,  substantially  as  embodied  in  the  conven- 
tion of  Constantinople,  signed  October  28,  1888,  for  the  free  navigation 
of  the  Suez  Canal;  that  is  to  say  — 

Rules  1  to  6  are  then  enumerated: 

1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce  and 
of  war  of  all  nations  observing  these  rples,  on  terms  of  entire  equality,  so 
that  there  shall  be  no  discrimination  against  any  such  nation,  or  its  citi- 
zens or  subjects,  in  respect  of  the  conditions  or  charges  of  traffic  or  other- 
wise.   Such  conditions  and  charges  of  traffic  shall  be  just  and  equitable. 

That  is  declared  by  the  treaty  to  be  substantially  as  em- 
bodied in  the  convention  of  Constantinople  regarding  the 
Suez  Canal.  Turn  to  the  convention  of  Constantinople,  and 
see  what  guide  you  find  there  to  determine  what  was  the 
scope  and  character  of  the  equality  provided  in  this  first  rule, 
which  is  said  to  be  substantially  as  provided  in  the  Treaty  of 
Constantinople. 

The  Treaty  of  Constantinople  was  made,  not  before  title  to 
the  canal  was  obtained,  as  in  the  case  of  our  Hay-Pauncefote 
Treaty,  but  after  the  title  was  obtained.    The  company  that 


PANAMA  CANAL  TOLLS  283 

built  the  Suez  Canal  had  already  gotten  their  grant  from  the 
territorial  sovereign  when  this  convention  was  made.  Our 
Hay-Pauncefote  Treaty  was  made  before  the  grant  was 
obtained  from  the  territorial  sovereign. 

Mr.  Williams.  As  a  matter  of  information,  was  that  after 
Disraeli  bought  a  majority  of  the  stock  in  the  Suez  Canal  ? 

Mr.  Root.    I  am  not  certain. 

Mr.  Williams.    It  was  bought  prior  to  that,  was  it  not  ? 

Mr.  Root.    I  am  not  positive. 

Mr.  Williams.    The  date  of  the  treaty  was  1888  ? 

Mr.  Root.    October  28,  1888. 

Mr.  Williams.    That  was  after  Disraeli  bought  the  stock. 

Mr.  Root.  It  must  have  been  afterwards.  This  conven- 
tion provides  that  Great  Britain,  Austria-Hungary,  Spain, 
and  so  forth  — 

Wishing  to  establish  by  a  conventional  act  a  definite  system  destined 
to  guarantee  at  all  times  and  for  all  the  powers  the  free  use  of  the  Suez 
Maritime  Canal,  and  thus  to  complete  the  system  under  which  the 
navigation  of  this  canal  has  been  placed  by  the  firman  of  His  Imperial 
Majesty,  the  Sultan,  dated  February  22,  1866  (2  Zilkad^,  1282),  and 
sanctioning  the  concessions  of  His  Highness  the  Khedive,  have  named  as 
their  plenipotentiaries;  that  is  to  say  — 

The  firman  of  the  Sultan  sanctioning  the  concession  of  the 

Khedive  under  date  of  February  22,  1866,  referred  to  in  this 

paragraph,  provides  for  a  great  variety  of  circumstances  and 

conditions  relating  to  the  construction  and  operation  of  the 

canal,  and  in  article  17  it  provides: 

The  dues  are  to  be  levied  without  exception  or  favor  upon  all  vessels 
under  like  conditions. 

So  that  was  a  fundamental  basis  under  which  the  Suez 

Canal  was  to  be  operated,  and  to  which  this  convention  was 

to  apply.    The  convention  then  proceeds: 

The  Suez  Maritime  Canal  shall  always  be  free  and  open,  in  time  of 
war  as  in  time  of  peace,  to  every  vessel  of  commerce  or  of  war,  without 
distinction  of  flag. 


284  INTERNATIONAL  SUBJECTS 

Article  12: 

The  high  contracting  parties,  by  application  of  the  principle  of  equality 
as  regards  the  free  use  of  the  canal,  a  principle  which  forms  one  of  the 
bases  of  the  present  treaty,  agree  that  none  of  them  shall  endeavor  to 
obtain  with  respect  to  the  canal  territorial  or  commercial  advantages  or 
privileges  in  any  international  arrangements  which  may  be  concluded. 
Moreover,  the  rights  of  Turkey  as  the  territorial  power  are  reserved. 

There,  sir,  you  have  the  Suez  Canal  convention  declaring 
the  principle  of  equality  as  one  of  the  bases  of  its  convention, 
a  convention  made  to  regulate  the  operation  of  the  canal 
under  a  concession  by  the  Khedive  and  a  firman  by  the  Sul- 
tan, which  prescribes  that  equal  tolls  shall  be  exacted  of  all 
vessels  under  like  conditions. 

Mr.  Williams.  And  after  Great  Britain  had  become  the 
owner. 

Mr.  Root.  This  convention  which  makes  that  declaration 
of  absolute  and  universal  equality  of  tolls  a  basis  of  its  agree- 
ment was  made,  as  the  Senator  from  Mississippi  suggests, 
after  Great  Britain  had  become  the  chief  owner  and  arbiter 
of  the  canal.  Now,  I  come  back  to  the  Hay-Pauncefote 
Treaty.    Article  3: 

The  United  States  adopts  as  the  basis  — 

they  use  the  very  term  of  the  twelfth  article  of  the  Suez 
convention,  which  makes  equality  one  of  the  bases  of  its 
convention.    They  use  the  very  words  of  the  twelfth  article. 

The  United  States  adopts  as  the  basis  of  the  neutralization  of  such 
ship  canal  the  following  rules,  substantially  as  embodied  in  the  conven- 
tion of  Constantinople,  etc. : 

1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce  and  of 
war  of  all  nations  observing  these  rules  on  terms  of  entire  equality. 

An  "  entire  equality  "  substantially  as  embodied  in  the 
Suez  convention.  You  are  bound  to  say  that  the  equality 
was  substantially  the  same.  When  these  negotiators  at  that 
very  instant  were  appealing  to  the  Suez  convention,  and 


PANAMA  CANAL  TOLLS  285 

declaring  the  treaty  they  were  making  was  substantially 
the  same  in  the  rule  of  equality  which  it  prescribed,  when 
they  were  declaring  that  what  they  were  doing  was  substan- 
tially like  what  the  Suez  convention  did  —  you  are  not  at 
hberty  to  say  that  at  that  very  instant  they  meant  something 
entirely  diflferent.  If  you  do  that,  you  say  they  were  dis- 
honest, they  were  disingenuous,  they  were  deceiving  Great 
Britain. 

Ah,  Mr.  President,  the  worst  thing  about  it  is  that  our 
Government  has  said  from  generation  to  generation  it  was 
going  to  treat  all  the  world  alike  in  whatever  it  did  about  this 
canal;  that  the  makers  of  our  treaty  declared  that  they  were 
preserving  unimpaired  the  equality  established  in  the  eighth 
article  of  the  Clayton-Bulwer  Treaty;  that  the  makers  of  our 
treaty  declared  that  the  provision  for  equality  was  substan- 
tially the  same  as  that  in  the  Suez  treaty;  that  that  was  the 
uniform,  the  imvarying  attitude  of  the  United  States  in  every 
step  which  we  took  to  acquire  title  to  the  Canal  Zone,  and  to 
get  the  unrestricted  right  to  own  and  operate  the  canal;  and 
not  until  after  we  got  it,  not  until  after  we  were  secure,  did 
any  American  ever  broach  the  idea  that  we  were  to  use  the 
canal  for  selfish  advantage  commercially;  that  to  the  politi- 
cal control,  to  the  military  control,  to  the  power  of  ownership 
and  regulation  and  management,  we  were  to  add  a  discrimi- 
nation against  all  the  rest  of  the  world  for  the  purpose  of 
enabling  our  merchant  ships  to  outdo  them  in  competition. 

Mr.  WiLUAMS.  Will  the  Senator  pardon  me  for  a  sugges- 
tion ? 

Mr.  Root.    Certainly. 

Mr.  Williams.  We  not  only  waited  until  after  we  ac- 
quired title  but  we  waited  until  after  we  concluded  that  pos- 
sibly the  operation  of  the  canal  would  be  unprofitable,  before 
we  made  this  claim. 

Mr.  Root.    I  am  obliged  to  the  Senator  for  his  suggestion. 


286  INTERNATIONAL  SUBJECTS 

Now,  what  are  the  arguments  for  the  narrower  construc- 
tion ?  It  is  said  that  in  this  first  rule  the  words  **  observing 
these  rules  "  limit  the  words  "  all  nations,"  so  that  they  can- 
not be  held  to  include  the  United  States.  You  cannot  give 
that  construction  to  those  words,  if  there  is  any  construc- 
tion that  can  be  given  to  them  consistent  with  the  declarations 
that  I  have  been  recounting  here.  Is  it  a  necessary  construc- 
tion ?  Certainly  not.  In  the  first  place,  when  you  look  at  the 
history  of  the  words  "  observing  these  rules  "  you  see  that 
they  were  put  into  the  clause  for  an  entirely  dififerent  pur- 
pose. They  were  not  put  there  for  the  purpose  of  excluding 
the  United  States.  The  reason  why  they  were  put  there 
appears  in  full,  and  with  great  distinctness  and  beyond  any 
doubt,  in  the  correspondence  and  the  record  x>i  the  negotia- 
tions. 

The  original  Hay-Pauncefote  Treaty  contained  a  clause 
providing  that  other  nations  should  be  invited  to  adhere,  to 
come  in  and  become  parties  to  the  contract.  Our  negotiators 
insisted,  in  negotiating  the  second  treaty,  that  that  should  go 
out.  Indeed,  the  Senate  had  stricken  it  out  in  its  amend- 
ment of  the  first  treaty.  When  Great  Britain  assented  to 
that  she  said  that  that  done  by  itself,  leaving  the  provision 
that  the  canal  should  be  free  and  open  to  the  vessels  of  all 
nations  upon  terms  of  entire  equality,  would  operate  against 
her  in  time  of  war,  because  the  rules  from  2  to  5  in  the  third 
article  of  the  treaty,  which  described  the  conditions  and  re- 
quirements of  neutrality  of  the  canal,  would  be  binding  upon 
her,  since  she  was  a  party  to  the  treaty,  and  they  would  not 
be  binding  upon  any  other  country;  and  so  other  countries, 
being  entirely  free  from  all  the  limitations  of  these  neutrality 
provisions,  would  have  an  advantage  over  her  and  she  would 
be  subject  to  a  biu-den.  Accordingly  she  put  into  this  first 
clause  "  all  nations  agreeing  to  observe  these  rules."  But 
Mr.  Choate  and  Mr.  Hay  said,  "  No,  we  will  have  no  nations 


PANAMA  CANAL  TOLLS  287 

agreeing  at  all;  that  would  let  them  into  a  contract  relation 
with  the  United  States  regarding  the  canal,  and  that  we  will 
not  have.  Strike  out  *  agreeing '  and  put  it  *  all  nations 
observing  these  rules/  because  then  any  country  which  does 
not  wish  to  observe  the  neutrality  provisions  and  rules  2  to  5 
or  2  to  6,  will  be  excluded  from  the  use  of  the  canal  and  Great 
Britain  will  not  be  placed  at  a  disadvantage  in  time  of  war." 
That  was  the  sole  reason  for  putting  in  those  words,  and  it 
appears,  I  say,  in  full. 

Now  we  are  asked  to  give  an  entirely  different  meaning 
and  effect  to  the  introduction  of  those  words,  a  meaning  and 
effect  which  the  negotiations  show  never  entered  the  minds 
of  the  negotiators  upon  either  side. 

It  appears  very  clearly,  by  the  enumeration  of  the  changes 
in  the  treaty  when  it  was  sent  to  the  Senate,  that  the  intro- 
duction of  the  words  "  observing  these  rules  "  was  not  under- 
stood by  the  makers  of  the  treaty  as  producing  any  change 
whatever  in  the  meaning  of  the  first  article  except  the  limi- 
tation that  I  have  referred  to;  for  Mr.  Hay,  in  the  memoran- 
dum which  came  with  the  treaty,  states  the  changes  from  the 
first  form  of  the  Hay-Pauncefote  Treaty,  which  did  not  con- 
tain the  words  "  observing  these  rules,"  but  was  for  all 
nations,  not  limited  to  nations  observing  these  rules.  He 
says  they  were  as  follows: 

First.  In  the  new  draft  of  treaty  the  provision  superseding  the  Clayton- 
Bnlwer  Treaty  as  a  whole. 

Second.  By  a  change  in  the  first  line  of  article  3,  instead  of  the  United 
States  and  Great  Britain  jointly  adopting  as  the  basis  of  the  neutralization 
of  the  canal,  the  rules  of  neutrality  prescribed  for  its  use  as  was  provided 
by  the  former  treaty,  the  United  States  now  alone  adopts  them. 

Third.  The  omission  of  the  words  "  in  time  of  war  as  in  time  of  peace  " 
from  clause  1,  of  article  3. 

Fourth.  The  striking  out  of  the  provision  by  which  other  powers  were 
to  be  invited  to  come  in  and  adhere  to  the  treaty. 

Fifth.  The  change  from  the  former  treaty  in  the  omission  of  the  pro- 
vision in  clause  7  of  article  3,  which  prohibited  the  fortification  of  the  canal. 


288  INTERNATIONAL  SUBJECTS 

and  the  transfer  to  clause  i  of  the  remaining  provision  of  clause  7,  that  the 
United  States  shall  be  at  liberty  to  maintain  such  military  police  along  the 
canal  as  may  be  necessary  to  protect  it  against  lawlessness  and  disorder. 

Sixth.  The  omission  of  the  words  "  in  time  of  war  as  in  time  of  peace," 
and  disi)ensing  with  the  necessity  of  the  Davis  amendment,  giving  express 
authority  to  the  United  States  to  protect  itself  in  time  of  war. 

That  is  the  enumeration  of  the  changes  that  were  made, 
and  you  will  find  no  place  there  for  any  change  made  by  the 
introduction  of  the  words  "  observing  these  rules."  It  ap- 
pears affirmatively  otherwise  that  the  negotiators  did  not 
consider  that  they  were  making  any  change,  for  Mr.  Choate 
says  in  his  final  account  of  the  second  treaty,  which  I  have 
already  read  to  you,  for  a  different  purpose  — 

It  gives  us  an  American  canal,  on  the  sole  condition  of  its  being  always 
neutral  and  free  for  the  passage  of  the  ships  of  all  nations  on  equal  terms. 

That  is  his  statement  of  what  this  treaty  meant.  The  clause 
which  provided  that  the  treaty  was  to  be  for  all  nations  ob- 
serving these  rules  on  terms  of  entire  equality  Mr.  Choate 
translates  as  being  on  the  sole  condition  of  its  being  always 
neutral  and  free  for  the  ships  of  all  the  nations  on  equal 
terms;  and  Mr.  Hay,  in  his  account  to  the  Senate  of  the  terms 
of  this  final  treaty  written  to  Mr.  Cullom,  says : 

While  omitting  to  invite  other  nations  to  adhere  to  the  treaty  when 
ratified,  and  so  to  acquire  contract  rights  in  the  canal,  it  was  thought 
that  the  provision  that  the  canal  shoiJd  be  free  and  open  to  all  nations 
on  terms  of  entire  equality  would  practically  meet  the  objection. 

He  says,  further,  that  Lord  Pauncefote  was  requested  **  to 
reach  a  conclusion  which  should  be  satisfactory  to  the  United 
States,  if  this  could  be  done  without  departing  from  the  great 
principle  of  neutrality,  including  the  use  of  the  canal  by  all 
nations  on  equal  terms." 

And  he  says  it  was  believed  that  the  declaration  that  it 
should  be  free  and  open  to  all  nations  of  the  world  on  terms 
of  entire  equality  would  practically  meet  the  force  of  the 
objection  which  had  been  made. 


PANAMA  CANAL  TOLLS  289 

I  refer  you  again  to  the  message  of  President  Roosevelt, 
transmitting  this  treaty  to  the  Senate,  in  which  he  describes 
it  as  a  treaty  which  assures  the  right  to  the  free  passage  of 
the  canal  to  all  the  nations  of  the  world  on  equal  terms. 

Mr.  Sutherland.  Does  the  Senator  from  New  York 
think  that  President  Roosevelt  intended  by  that  language  to 
exclude  the  United  States  from  the  power  to  exempt  its  own 
coastwise  ships  ? 

Mr.  Root.  No;  I  do  not  think  he  had  that  in  mind  at  all. 
I  think  that  he  had  in  mind  then  the  subject  which  I  am  now 
discussing.  It  has  nothing  to  do  with  the  coastwise  ships. 
The  subject  which  I  am  now  discussing  is  the  question  what 
was  the  rule  of  equality  declared  in  the  third  article  of  the 
Hay-Pauncefote  Treaty.  The  question  whether  coastwise 
vessels  furnished  an  exception  to  that  rule  is  an  entirely 
different  question,  which  I  shall  come  to  presently. 

I  am  certain  there  is  no  other  conclusion  that  can  be 
reached,  and  that  President  Roosevelt  in  that  message  in- 
tended to  declare  that  this  treaty  established  the  broad  rule 
of  equality  for  all  nations.  He  did  not  stumble  over  the 
words  "  observing  these  rules."    He  said: 

Under  the  Hay-Pauncefote  Treaty  it  was  explicitly  provided  that  the 
United  States  should  control  and  protect  the  canal  which  was  to  be  built, 
keeping  it  open  for  the  vessels  of  all  nations  on  equal  terms. 

That  is  what  he  xmderstood  the  treaty  meant.  But  it  is  said 
that  the  broad  construction  cannot  be  given,  because  the 
United  States  is  not  to  observe  these  rules.  Nothing  could  be 
further  from  the  truth. 

I  turn  again  to  the  words  of  the  Hay-Pauncefote  Treaty. 
Under  article  3  there  are  six  rules  prescribed.  The  first  is 
that  — 

The  canal  shall  be  free  and  open  ...  on  terms  of  entire  equality. 

We  are  told  that  that  is  not  a  rule,  because  it  does  not 
relate  to  neutrahty,  and  that  the  second,  third,  fourth,  fifth. 


290  INTERNATIONAL  SUBJECTS 

and  sixth  paragraphs  of  article  3  are  rules.  Well,  Mr.  Presi- 
dent, the  treaty  says  it  is  a  rule.  I  do  not  know  that  any  of 
us  should  assume  to  know  better  than  the  treaty-makers  or 
assume  to  know  better  than  the  treaty  itself.  The  treaty 
says: 

The  United  States  adopts  as  the  basis  of  the  neutralization  of  such  ship 
canal  the  following  rules,  substantially  as  embodied  in  the  convention  of 
Constantinople. 

That  is  to  say: 

1.  The  canal  shall  be  free  and  open  to  the  vessels  of  commerce  and  of 
war  of  all  nations  observing  these  rules. 

And  I  ask  whether  the  United  States  was  not  to  observe 
this  rule  ? 

Mr.  Sutherland.  How  would  Great  Britain  observe  that 
first  paragraph  ? 

Mr.  Root.  Perhaps  she  could  not.  The  rules  are  to  be 
observed  by  the  coimtries  as  they  are  applicable  to  those 
countries.  The  code  of  rules  may  none  of  them  ever  have  to 
be  observed  by  any  country  except  the  United  States,  be- 
cause there  may  be  no  country  ever  under  such  circum- 
stances as  to  call  one  of  them  into  application;  but  it  is  quite 
clear  that  the  first  paragraph  under  the  preamble  in  article  3 
is  a  rule,  because  the  treaty  says  it  is,  and  that  the  nation 
which  is  primarily  charged  with  the  observance  of  that  is  the 
United  States,  so  that  the  United  States  must  be  considered 
as  coming  within  the  description  of  nations  observing  these 
rules.    But  let  us  pass  to  the  others: 

2.  The  canal  shall  never  be  blockaded,  nor  shall  any  right  of  war  be 
exercised  nor  any  act  of  hostility  be  committed  within  it.  The  United 
States,  however,  shall  be  at  liberty  to  maintain  such  military  police  along 
the  canal.  .  .  . 

They  evidently  thought  the  United  States  had  something  to 
do  with  that  rule  or  they  would  not  have  expressly  provided 
for  what  they  apparently  considered  an  exception  to  it. 


PANAMA  CANAL  TOLLS  291 

8.  Vessels  of  war  of  a  belligerent  shall  not  revictual  nor  take  any  stores. 

4.  No  belligerent  shall  embark  or  disembark  troops. 

5.  The  provisions  of  this  article  shall  apply  to  waters  adjacent  to  the 
canal,  within  three  marine  miles  of  either  end,  but  a  vessel  of  war  of  one 
belligerent  shall  not  depart  within  twenty-four  hours  from  the  departure  of 
a  vessel  of  war  of  the  other  belligerent. 

Mr.  President,  all  those  rules  of  neutrality,  the  product  of 
the  direct  application  of  the  principle  of  neutrahzation  pre- 
served from  the  eighth  article  of  the  Clayton-Bulwer  Treaty, 
are  primarily  for  the  observance  of  the  United  States.  We 
are  not  dealing  with  an  unknown  subject  here;  we  are  dealing 
with  a  subject  which  has  enlisted  the  attention  of  publicists 
and  rulers  and  diplomatists  since  international  law  began. 

We  imdertook  in  the  Treaty  of  Washington  to  formulate 
certain  rules,  and  we  did  formulate  certain  rules  of  neutrality, 
to  the  observance  of  which  Great  Britain  and  the  United 
States  pledged  themselves,  and  for  the  non-observance  of 
those  rules  in  the  past,  through  the  Geneva  arbitration,  we 
compelled  Great  Britain  to  pay  us  $15,000,000. 

There  are  two  kinds  of  neutrality  —  the  result  of  neutral- 
ization by  a  general  convention,  in  which  a  great  number  of 
countries  declare  certain  territory  to  be  neutral  and  all  accept 
the  burden  of  maintaining  the  neutrality  and  observing  it; 
that  is  one.  The  other  is  the  neutrality  which  a  territorial 
sovereign  declares  in  respect  of  its  territory.  The  leader  of 
the  world  in  neutrality  of  that  description  is  the  United 
States.  It  commenced  its  wise  and  beneficent  treatment  of 
the  subject  by  Washington's  neutrality  proclamation.  When 
any  country  declares  the  neutrality  of  its  territory,  as  be- 
tween any  two  or  more  belligerents,  that  country  assumes 
the  duty  of  observing  the  rules  which  the  law  of  nations  has 
established  for  the  regulation  of  neutrality.  A  part  of  those 
rules  were  codified  in  the  Treaty  of  Washington  in  1871.  In 
that  treaty  Great  Britain  and  the  United  States  in  express 
terms  declare  that  the  high  contracting  parties  agree  to 


292  INTERNATIONAL  SUBJECTS 

observe  those  rules,  that  were  codified  in  that  treaty.  The 
most  enhghtened  and  advanced  rules  regulating  the  neu- 
trality of  a  country  under  the  powers  of  a  single  sovereignty 
were  codified  here  in  this  Hay-Pauncefote  Treaty,  and  im- 
posed upon  the  United  States,  because  the  change  from  the 
first  Hay-Pauncefote  Treaty  to  the  second  treaty  changed  the 
character  of  the  neutrality  from  a  neutrality  by  universal 
agreement,  to  a  neutrality  by  the  fiat  of  the  sovereign  of  the 
territory,  the  controller  of  the  territory.  Those  rules  have 
been  codified  again  in  the  neutrality  treaty  of  the  second 
Hague  Conference  of  1907;  and  in  that  codification  there  are 
express  provisions,  declaring  in  detail  the  obligations  of  the 
sovereign  guaranteeing  the  neutrality.  There  is  not  a  rule 
here,  from  the  second  to  the  fifth,  that  does  not  impose  duties 
upon  the  United  States.  Where  the  rule  says  the  canal  shall 
not  be  blockaded,  the  duty  of  observance  rests  upon  Great 
Britain  as  a  contracting  party;  it  rests  upon  all  other  coun- 
tries that  use  the  canal,  because  they  avail  themselves  of  the 
privilege;  it  rests  upon  the  United  States,  because  she  has 
contracted  that  the  canal  shall  be  open;  and  it  will  be  her 
duty  to  stop  a  blockade  if  she  has  the  physical  power,  and  if 
she  has  not,  it  will  be  her  duty  to  exact  reparation  from  any 
party  who  violates  the  rule  by  blockading  the  canal. 

If  ships  of  war,  in  time  of  war,  shall  loiter  in  the  canal,  it  is 
her  duty  to  urge  them  forward.  If  a  ship  stays  to  the  limit  of 
twenty-four  hours,  it  is  her  duty  to  give  notice  and  to  require 
it  to  leave.  If  a  ship  undertakes  to  disembark  or  to  embark 
men  and  munitions  in  time  of  war,  it  is  the  duty  of  the  United 
States  to  prevent  it.  We  have  time  and  again  in  our  diplo- 
matic history  acknowledged  the  duty  of  observance  both  by 
the  power  that  guarantees  the  neutrality  of  the  territory  and 
the  duty  of  the  powers  that  avail  themselves  of  the  privilege 
of  using  the  neutralized  territory.  We  have  made  amends  for 
violating  the  territory  of  a  neutral;  we  have  exacted  amends 


PANAMA  CANAL  TOLLS  293 

of  others  that  have  violated  our  neutral  territory;  and  every 
rule  which  is  contained  in  the  second  article  of  the  Hay- 
Pauncefote  Treaty  in  regard  to  neutrality  is  a  rule  the 
observance  of  which  is  incumbent  upon  the  United  States. 

We  are  told  that  the  United  States  cannot  be  supposed  to 
have  been  laying  down  rules  for  herself  as  a  customer;  that 
this  article  of  the  Hay-Pauncef ote  Treaty  prescribes  rules  for 
the  customers  of  the  canal,  and  that  we  cannot  suppose  that 
the  United  States  expected  to  be  its  own  customer.  Well, 
that  involves  confusion  of  ideas  between  the  vessels  of  citi- 
zens of  the  United  States  and  vessels  of  the  United  States 
itself,  to  which  I  have  already  adverted.  The  customers  of 
the  canal  are  not  nations  in  their  political  capacity.  If  this 
canal  had  been  built  by  a  company,  as  was  within  the  con- 
templation of  the  treaty  and  the  words  of  the  treaty,  the 
United  States  politically  would  not  have  been  a  customer  of 
the  canal;  but  the  ships  of  the  citizens  of  the  United  States 
and  the  owners  of  those  ships  would  have  been  customers,  the 
ships  of  the  United  States  would  have  been  customers,  and 
the  ships  of  all  other  countries  would  have  been  customers. 
American  citizens  owning  American  registered  and  enrolled 
ships  will  be  customers  of  the  canal  just  as  much  as  will  be  the 
subjects  of  other  countries. 

We  are  also  told  that  all  presumptions  are  against  grants 
in  derogation  of  sovereignty.  There  are  two  things  to  be  said 
about  that:  in  the  first  place,  when  we  made  this  treaty  we 
had  no  sovereignty.  We  made  no  grant  in  derogation  of 
sovereignty;  we  made  no  grant  affecting  any  sovereignty 
that  we  had.  The  observance  of  this  provision  is  a  reserva- 
tion in  favor  of  the  sovereignty  of  Panama  in  her  grant  to  us, 
and  the  observance  of  that  reservation  is  one  of  the  stipu- 
lations under  which  we  acquired  the  right  to  build  the  canal. 

Another  thing  to  be  said  about  that  argument  is,  that  no 
stipulation  about  the  amount  of  tolls  can  be  in  derogation  of 


2»4  INTERNATIONAL  SUBJECTS 

sovereignty  under  any  circumstances.  Fixing  tolls  is  a  busi- 
ness transaction.  When  the  United  States  goes  into  business 
as  the  owner  of  a  railroad  or  of  a  canal,  the  fixing  of  a  charge 
is  not  an  act  of  sovereignty;  it  is  an  act  of  business. 

Did  we  derogate  from  sovereignty  when  we  made  our 
treaty  in  1854,  our  treaty  in  1871,  and  our  still  more  recent 
treaty  of  1909,  in  which  we  agreed  that  the  tolls  charged  upon 
Canadian  or  British  vessels  in  all  our  canals  along  the  bound- 
ary should  be  measured  by  the  tolls  charged  to  American 
citizens  ?  Have  we  lost  our  sovereignty  over  the  Sault 
Canal  ?  Do  we  derogate  our  sovereignty  when  we  agree 
that  we  shall  charge  the  same  rates  in  our  ports  to  citizens  of 
other  coimtries  that  we  charge  to  citizens  of  our  own  country? 
Have  we  thereby  lost  our  sovereignty  over  the  port  of  New 
York  or  of  Boston  or  of  Philadelphia  or  of  Buffalo  ? 

The  argument  is  made  that  this  treaty  is  no  longer  binding 
because  there  has  been  a  change  of  sovereignty.  There  has 
been  much  argument  made  upon  the  express  provision  of 
this  treaty,  the  fourth  article,  imder  which  it  was  expressly 
provided  that  no  change  of  sovereignty  should  affect  the 
rights  and  duties  of  the  parties  to  the  treaty;  but  the  corre- 
spondence shows  that  that  fourth  article  of  the  treaty  was 
put  in  for  the  express  purpose  of  preventing  any  such  argu- 
ment as  has  been  made  here  from  prevailing.  Here  is  Mr. 
Choate  writing  to  Mr.  Hay  about  this  fourth  article.  That 
was  proposed  by  Great  Britain.  Form  was  given  to  it  by 
Mr.  Hay.    Let  me  read  it  again: 

It  is  agreed  that  no  change  of  territorial  sovereignty  or  of  international 
relations  of  the  country  or  countries  traversed  by  the  beforementioned 
canal  shall  affect  the  general  principle  of  neutralization  or  the  obligation 
of  the  high  contracting  parties  under  the  present  treaty. 

Mr.  Choate  writes: 

The  idea  "  change  of  sovereignty,"  of  course,  relates  to  the  rep>ort  of 
an  intention  on  the  part  of  the  United  States  to  acquire  a  strip  of  terri- 


PANAMA  CANAL  TOLLS  295 

tory  on  each  side  of  the  canal,  and  "  other  change  of  circumstances  "  is 
aimed  at  the  argimient  in  some  future  epoch  against  the  continuance  of 
this  treaty  that  has  often  been  directed  against  the  continued  binding 
force  of  the  C.-B.  Treaty  that  "  change  of  circimistance  "  since  1850  has 
put  an  end  to  it. 

And  Mr.  Hay's  letter  to  Senator  Cullom,  referring  to  the 
Lansdowne  treatment  of  the  negotiation,  says: 

In  this  connection  he  referred  to  the  fact  that  the  new  treaty  contained 
no  stipulation  against  the  acquisition  of  sovereignty  over  the  territory 
through  which  the  canal  should  pass.  .  .  . 

It  was  claimed  that  if  Great  Britain  were  now  to  be  called  upon  to 
siurender  the  interests  and  the  principle  thus  seciu-ed  by  what  remained 
of  the  Clayton-Bulwer  Treaty,  there  should  be,  in  view  of  the  character 
of  the  treaty  now  to  be  concluded  and  of  the  "  general  principle  "  of  neu- 
tralization thus  reaffirmed  in  the  preamble,  some  clause  inserted  agreeing 
that  no  change  of  sovereignty  or  other  change  of  circumstances  in  the 
territory  through  which  the  canal  is  intended  to  pass  shall  affect  such 
"  general  principle  "  or  release  the  parties,  or  either  of  them,  from  their 
obligations  imder  this  treaty. 

Mr.  Colt.  May  I  ask  the  Senator  a  question  for  instruc- 
tion merely  ?  Were  any  rights  of  sovereignty  reserved  to  the 
United  States  under  the  Hay-Paimcef  ote  Treaty  such  as  were 
reserved  to  Turkey  under  the  Suez  convention  ? 

Mr.  Root.  I  think  I  would  answer  that  question  in  the 
negative.  At  the  time  the  Hay-Pauncef  ote  Treaty  was  made, 
neither  party  had  sovereignty,  and  there  could  be  no  reserva- 
tion of  any  rights  of  sovereignty.  The  convention  mani- 
festly contemplated  that  the  United  States  should,  either  for 
itself  or  for  a  company  to  be  patronized  by  it,  acquire  certain 
rights  for  the  construction  of  a  canal  on  the  Isthmus,  either 
by  the  way  of  Nicaragua  or  of  Panama.  All  questions  of 
sovereignty  would  necessarily  have  to  be  dealt  with  in  the 
instrument  which  conferred  those  rights.  In  the  treaty  with 
Nicaragua,  to  which  I  have  already  referred,  the  United 
States  acquired  rights  very  far  short  of  sovereignty;  in  the 
Hay-Herran  Treaty,  which  was  negotiated  with  Colombia 


296  INTERNATIONAL  SUBJECTS 

immediately  after  the  Hay-Pauncefote  Treaty,  and  which 
Colombia  refused  to  ratify,  the  United  States  received  rights 
very  far  short  of  sovereignty.  But  in  the  Panama  treaty,  for 
the  first  time,  there  was  a  grant  to  the  United  States  of  what 
amounted  to  substantial  sovereignty  over  the  Canal  Zone, 
Panama  making,  however,  certain  reservations  and  im- 
posing certain  stipulations,  among  them  a  stipulation  that 
the  canal  should  always  be  free  and  open  to  ships  of  all 
nations  upon  the  terms  of  the  third  article  and  all  the  terms 
of  the  Hay-Paimcefote  Treaty. 

Mr.  Colt.  I  do  not  desire  to  interrupt  the  Senator.  I 
simply  want  to  suggest  that,  as  it  lay  in  my  mind,  the  pro- 
vision as  to  change  of  sovereignty  being  inserted  in  the  second 
Hay-Pauncefote  Treaty  and  our  negotiators  failing  in  the 
conclusion  of  that  treaty  to  reserve  to  the  United  States  the 
same  rights  of  sovereignty  of  the  territorial  sovereign  which 
were  reserved  to  Turkey,  the  territorial  sovereign  of  the  Suez 
Canal,  imder,  I  thiok,  the  tenth  and  thirteenth  articles  of  the 
Suez  convention,  whether  it  was  not  an  omission  on  their 
part  not  to  reserve  to  the  United  States  the  same  sovereign 
rights  reserved  in  the  Suez  convention? 

Mr.  Root.  Mr.  President,  it  may  be  that  it  would  have 
been  advisable  to  put  into  the  Hay-Pauncefote  Treaty  some 
clause  of  that  kind;  but  manifestly  the  controlling  provision 
must  be  the  provision  of  the  treaty  with  Panama,  because 
only  the  sovereign  can  effectively  reserve  such  rights. 

Mr.  President,  when  we  are  talking  about  the  infringe- 
ment of  sovereignty,  and  especially  when  we  hear  heated 
denunciations  of  what  is  called  the  surrender  of  American 
sovereignty,  assertions  that  we  have  built  the  canal  on  our 
own  territory,  with  our  own  money,  and  can  do  what  we 
please  with  it,  I  cannot  forget  that  four  years  ago  at  this 
time  I  was  representing  our  country  before  a  great  tribunal 
at  The  Hague,  urging  upon  that  court  the  rights  of  the 


PANAMA  CANAL  TOLLS  297 

United  States  to  have  observed  in  good  faith  by  Great  Britain 
the  stipulations  which  she  had  made  in  the  treaty  of  1818, 
regarding  the  treatment  of  our  fishermen  upon  the  coasts  and 
in  the  bays  and  harbors  of  Newfoundland.  I  was  urging 
then  that  under  the  treaty  of  1818,  which  provided  that 
American  fishermen  should  have  in  common  with  the  sub- 
jects of  His  Britannic  Majesty  the  liberty  to  take  fish  upon 
that  coast,  Great  Britain  was  bound  to  treat  our  fishermen 
in  letter  and  in  spirit  by  the  rule  of  equality  and  of  justice, 
although  it  was  in  her  waters,  in  the  unquestioned  territory 
of  her  oldest  colony,  that  we  were  claiming  to  exercise  our 
rights.  The  result  of  that  arbitration  was  that,  pursuant  to 
the  provisions  of  the  award  and  the  agreement  between  the 
countries  adjusting  and  giving  effect  to  it,  if  any  law  be 
passed  now  which  the  fishermen  of  the  United  States  regard 
as  unjust  and  unequal  toward  them  in  the  exercise  of  their 
calling  in  those  British  waters,  upon  the  objection  of  the 
United  States  it  is  suspended  in  operation  and  submitted 
to  the  arbitration  of  an  impartial  international  tribunal,  to 
determine  whether  it  shall  take  effect.  Ah,  Mr.  President, 
conformity  to  the  obligations  of  treaties  is  the  highest  exercise 
of  sovereignty  and  not  the  infringement  of  sovereignty. 

It  seems  to  me,  sir,  that  I  have  now  reached  a  point  where 
I  am  justified  in  leaving  the  main  question,  which  I  have  dis- 
cussed with  a  feeling  that  I  have,  in  a  poor  and  halting  way, 
but  by  the  presentation  of  substantial  matter,  established  the 
general  rule  prescribed  in  the  third  article  of  the  Hay-Paunce- 
fote  Treaty  as  a  rule  of  real  entire  equality,  of  real  absence  of 
discrimination,  applicable  to  all  the  nations  of  the  world,  to 
all  ships,  to  all  subjects,  and  to  all  citizens. 

The  question  to  which  we  now  must  pass,  is  the  question 
whether  the  statute  whose  repeal  is  sought  is  in  conformity 
with  that  rule  of  equality. 


298  INTERNATIONAL  SUBJECTS 

It  is  said  that  coastwise  traffic  may  be  exempted  from  that 

rule,  and  that  is  claimed  on  the  authority  of  the  case  of  Olsen 

against  Smith  in  One  hundred  and  ninety-fifth  Supreme 

Court  Reports.    In  that  case  the  court  say: 

Nor  is  there  merit  in  the  contention  that  as  the  vessel  in  question  was 
a  British  vessel  coming  from  a  foreign  port,  the  State  laws  concerning 
pilotage  are  in  conflict  with  the  treaty  between  Great  Britain  and  the 
United  States,  providing  that  "  no  higher  or  other  duties  or  charges  shall 
be  imposed  in  any  ports  of  the  United  States  on  British  vessels  than  those 
payable  in  the  same  ports  by  vessels  of  the  United  States."  Neither  the 
exemption  of  coastwise  steam  vessels  from  pilotage  resulting  from  the  law 
of  the  United  States  nor  any  lawful  exemption  of  coastwise  vessels  created 
by  the  State  law  concerns  vessels  in  the  foreign  trade,  and  therefore  any 
such  exemptions  do  not  oi)erate  to  produce  a  discrimination  against 
British  vessels  engaged  in  foreign  trade  and  in  favor  of  vesseb  of  the 
United  States  in  such  trade.  In  substance,  the  proposition  but  asserts 
that  because  by  the  law  of  the  United  States  steam  vessels  in  the  coast- 
wise trade  have  been  exempt  from  pilotage  regulations,  therefore,  there  is 
no  p)ower  to  subject  vessels  in  foreign  trade  to  pilotage  regulations,  even 
although  such  regulations  apply,  without  discrimination,  to  all  vessels 
engaged  in  such  foreign  trade,  whether  domestic  or  foreign. 

It  will  be  perceived  that  that  utterance  of  the  Supreme 
Court  lays  down  the  rule  of  equality  as  to  trade  of  the  same 
kind.  Now,  sir,  I  do  not  doubt  that  coastwise  trade,  real 
coastwise  trade,  is  a  special  kind  of  trade,  standing  by  itself, 
quite  unlike  the  great  over-seas  trade.  All  countries,  as  a 
rule,  treat  their  coastwise  trade  with  special  favor;  they 
charge  reduced  rates  for  the  privileges  it  has  in  their  ports; 
and  if  any  such  real  coastwise  trade,  any  of  the  trade  that  has 
been  known  to  the  laws  and  treaties  and  navigators  and 
traders  time  out  of  mind  as  coastwise  trade,  or  cabotage,  were 
to  pass  through  the  Panama  Canal,  I  should  not  question 
the  right  to  treat  that  in  a  diflFerent  way  from  the  great  over- 
seas trade  that  goes  through  that  canal.  But,  Mr.  President, 
the  real  gist  of  this  discrimination  is  not  the  discrimina- 
tion between  coastwise  trade,  properly  so  called,  and  other 
trade.    No  real  coastwise  trade  will  go  through  that  canal. 


PANAMA  CANAL  TOLLS  299 

It  IS  a  thousand  miles  and  more  away  from  our  coast.  The 
trade  that  goes  through  it  will  be  real  over-seas  trade,  carried 
on  by  great  ships,  making  long  voyages  —  in  its  nature  the 
exact  antithesis  to  real  coastwise  trade. 

The  trouble  with  this  discrimination  is  the  kind  of  trade 
which  is  included  in  this  statute.  The  great  over-seas  trade, 
the  trade  from  New  York  to  San  Francisco;  from  Portland, 
Maine,  to  Seattle;  from  Philadelphia  to  Hawaii;  from  Balti- 
more to  Alaska,  in  great  ships  plowing  two  oceans,  great  over- 
seas trade,  although  beginning  and  ending  in  American  ports, 
is  included  by  our  statute  under  the  term  "  coastwise  "  and 
has  the  benefit  of  this  discrimination;  and  other  countries 
have  the  same  kind  of  trade  and  will  send  the  same  kind  of 
trade  through  the  Suez  Canal.  The  decision  of  the  Supreme 
Court  of  the  United  States  was  based  upon  the  absence  of 
discrimination  between  the  same  kind  of  trade.  Here  this 
discrimination  is  solely  between  the  same  kind  of  trade.  It  is 
a  discrimination  between  a  kind  of  trade  carried  on  in  Ameri- 
can ships  and  the  same  kind  of  trade  carried  on  in  other  ships. 

Great  Britain  —  Canada  —  will  have  the  same  kind  of 
trade  between  Halifax  and  Vancouver.  Mexico  will  have  the 
same  kind  of  trade  between  Tampico,  sometimes  Vera  Cruz, 
and  Acapulco.  Hondm-as,  Nicaragua,  Costa  Rica,  Colom- 
bia; Germany  between  her  ports  and  the  Caroline  Islands 
will  have  just  the  same  kind  of  trade  that  we  have  between 
our  Atlantic  ports  and  Hawaii;  England  from  London  to 
Hong-Kong;  Russia  from  her  Baltic  ports  to  her  Siberian 
ports.  There  is  no  basis  of  this  discrimination  in  the  kind  of 
trade.  The  basis  of  the  discrimination  is  nothing  but  the 
flag;  and  I  cannot  resist  the  conclusion,  sir,  that  such 
discrimination  is  not  in  conformity  with  the  rule  of  equality. 

But  we  are  told,  sir,  that  we  must  not  repeal  this  statute 
"  at  the  behest  of  Great  Britain."  The  behest  of  Great 
Britain! 


300  INTERNATIONAL  SUBJECTS 

What  has  Great  Britain  said  to  us  ?  Let  us  see.  She  has 
said  that  she  considered  this  statute  to  be  a  violation  of 
the  contract;  and  she  said,  in  Mr.  Mitchell  Innes*s  note 
of  Augusts?: 

I  am  instructed  to  add  at  the  same  time  that  should  there  eventually 
be  a  difference  between  the  two  countries  as  to  the  correct  interpretation 
of  the  Hay-Pauncefote  Treaty  which  cannot  be  settled  by  other  means. 
His  Majesty's  Government  would  then  ask  that  it  should  be  referred  to 
arbitration  in  accordance  with  the  provisions  of  the  existing  arbitration 
treaty  concluded  in  1908. 

The  same  thing  was  said  to  Mr.  Phillips,  who  was  our 

charge  in  London;    and  he  reports  that  Sir  Edward  Grey 

announced  in  Parliament  that  — 

Should  there  eventually  be  a  difference  between  the  two  countries 
respecting  the  interpretation  of  the  Hay-Pauncefote  Treaty  that  could  not 
be  settled  by  other  means,  His  Majesty's  Government  would  ask  that  it 
be  referred  to  arbitration  in  accordance  with  the  provisions  of  the  existing 
arbitration  treaty  concluded  with  the  United  States  in  1908. 

In  the  formal  note  of  Sir  Edward  Grey  to  our  State 

Department,  he  concludes: 

His  Majesty's  Government  feel  no  doubt  as  to  the  correctness  of  their 
interpretation  of  the  treaties  of  1850  and  1901  and  as  to  the  validity  of 
the  rights  they  claim  under  them  for  British  shipping;  nor  does  there 
seem  to  them  to  be  any  room  for  doubt  that  the  provisions  of  the  Panama 
Canal  Act  as  to  tolls  '•onflict  with  the  rights  secured  to  their  shipping  by 
the  treaty.  But  they  recognize  that  many  j>ersons  of  note  in  the  United 
States,  whose  opinions  are  entitled  to  great  weight,  hold  that  the  provisions 
of  the  act  do  not  infringe  the  conventional  obligations  by  which  the 
United  States  is  bound,  and  imder  these  circumstances  they  desire  to 
state  their  perfect  readiness  to  submit  the  question  to  arbitration  if  the 
Government  of  the  United  States  would  prefer  to  take  this  course. 

Does  that  sound  like  a  behest  ?   Is  there  anything  arrogant 
or  insolent  about  that  ? 

Let  me  recall  to  your  minds,  without  going  over  the  long 
history,  what  the  United  States  has  said  and  done  in  respect 
of  arbitration.  Let  me  recall  to  your  minds  the  resolutions 
passed  by  the  Senate  and  by  the  House  calKng  for  the  nego- 


PANAMA  CANAL  TOLLS  301 

tiation  of  treaties  of  arbitration;  the  messages  of  Presidents, 
in  long  succession,  declaring  to  Congress  the  unalterable 
devotion  of  the  Government  of  the  United  States  to  the  prin- 
ciples of  arbitration;  the  multitude  of  treaties  negotiated  at 
the  instance  and  by  the  request  and  urgency  of  the  United 
States  pursuant  to  these  resolutions  of  Congress,  and 
providing  for  arbitration. 

Are  we  to  regard  it  as  arrogant  and  insolent  that  a  nation 
with  which  we  have  made  a  treaty  regarding  the  price  of  a 
service  to  be  rendered  differs  from  our  interpretation  of  the 
treaty  and  proposes  arbitration  ? 

Let  me  recall  to  you  also  the  Alabama  Claims,  and  the  time 
when  we  called  for  arbitration  to  enforce  our  demands  against 
Great  Britain,  and  got  it,  and  got  judgment  for  $15,000,000. 
Let  me  recall  when  we  called  for  arbitration  of  our  northwest- 
em  boundary,  and  obtained  for  ourselves  the  disputed  sover- 
eignty to  the  island  of  San  Juan,  in  the  Strait  of  Fuca.  Let 
me  recall  the  time  when  we  wanted  arbitration  for  the  rights 
of  our  helpless  fishermen  upon  the  Newfoundland  and  the 
Canadian  coasts,  and  got  it,  and  got  protection  for  them.  Let 
me  recall  the  time  when  the  miners  of  two  countries  were 
standing  on  either  side  of  the  disputed  boundary  line  in 
Alaska,  and  in  the  interest  of  peace  and  civilization  the  two 
countries  arbitrated  the  Alaska  boundary,  and  we  got  the 
territory  we  claimed.  Let  me  recall  to  you  the  Venezuela 
boundary  controversy,  when  we  demanded  that  Great  Bri- 
tain arbitrate.    Let  me  read  to  you  the  language  of  Secretary 

Olney  to  England: 

Olnet  to  Bayakd  ,        ^«  ,„„. 

July  20,  1895. 

You  are  instructed,  therefore,  to  present  the  foregoing  views  to  Lord 
Salisbury  by  reading  to  him  this  communication  (leaving  with  him  a 
copy,  should  he  so  desire),  and  to  reenforce  them  by  such  pertinent  con- 
siderations as  will  doubtless  occur  to  you.  They  call  for  a  definite  decision 
upon  the  point  whether  Great  Britain  will  consent  or  will  decline  to  submit 
the  Venezuelan  boimdary  question  in  its  entirety  to  impartial  arbitration. 


302  INTERNATIONAL  SUBJECTS 

Those  are  peremptory  words,  evincing  no  doubt  of  the  moral 
right  to  demand  arbitration. 

It  is  the  earnest  hope  of  the  President  that  the  conclusion  will  be  on 
the  side  of  arbitration,  and  that  Great  Britain  will  add  one  more  to  the 
conspicuous  precedents  she  has  already  furnished  in  favor  of  that  wise 
and  just  mode  of  adjusting  international  disputes.  If  he  is  to  be  dis- 
appointed in  that  hope,  however, —  a  result  not  to  be  anticipated  and,  in 
his  judgment,  calculated  to  greatly  embarrass  the  future  relations  between 
this  country  and  Great  Britain  —  it  is  his  wish  to  be  made  acquainted 
with  the  fact  at  such  early  date  as  will  enable  him  to  lay  the  whole  sub- 
ject before  Congress  in  his  next  annual  message. 

He  laid  it  before  Congress.  You  all  remember  that  it  was  a 
war  message.  All  the  world  understood  it.  He  got  his 
arbitration. 

Oh,  arbitration  when  we  want  it,  yes;  but  when  another 
country  wants  it,  "  Never,  never  furl  the  American  flag  at 
the  behest  of  a  foreign  nation." 

Mr.  President,  the  subject  that  I  am  now  discussing  raises 
sharply  the  question  how  the  American  people  want  their 
affairs  to  be  conducted.  They  have  a  multitude  of  relations 
with  other  countries.  They  are  doing  a  business  of  over  four 
thousand  million  dollars  with  other  countries.  They  are 
travelling  all  over  the  world  in  hundreds  of  thousands.  They 
are  receiving  in  this  country  hundreds  of  thousands  of  the 
citizens  of  other  countries.  Vast  interests  of  property  and  of 
liberty  and  of  life  are  regulated  by  the  great  body  of  treaties 
and  conventions  that  we  have  with  other  countries.  We 
think  oiu'selves,  and  rightly  think  ourselves,  leaders  in  civih- 
zation.  We  are  for  the  amelioration  of  manners  and  of  con- 
duct which  tends  to  substitute  kindly  feelings  and  considerate 
treatment  for  the  rule  of  hatred,  of  strife,  and  of  war. 

Do  the  American  people  wish  their  representatives  to  treat 
all  the  other  nations  that  are  in  conventional  relations  with 
us,  that  are  brought  in  contact  with  us  by  travel,  by  trade, 
by  all  the  multitudinous  intercourse  of  modem  life,  upon  the 


PANAMA  CANAL  TOLLS  303 

theory  that  any  question  of  right  by  them  is  an  insult,  that 
any  according  of  a  right  to  them  by  us  is  a  surrender  ?  Do 
they  want  us  to  conduct  our  foreign  aflFairs  on  the  principle 
of  the  thoughtless  youth  who  flings  up  his  hat  and  shouts  for 
the  flag,  or  as  just  and  considerate  men  transact  their  own 
business  with  each  other,  as  neighbors  in  a  town  treat  each 
other,  as  business  men  treat  their  customers  and  the  persons 
from  whom  they  buy  ?  Do  they  want  us  to  be  ugly  and 
revengeful  and  insolent  and  brutal  and  boasting,  or  do  they 
want  us  to  be  dignified  and  calm  and  considerate  and 
reasonable  in  our  relations  with  foreign  countries  ? 

I  say  that  the  argument  that  we  are  called  upon  to  "  sur- 
render at  the  behest  of  Great  Britain  '*  raises  the  question 
which  I  have  just  described,  and  which  I  will  not  stop  to 
answer,  for  there  can  be  but  one  answer  and  that  finds  itself 
in  the  immediate  response  of  every  Senator. 

But,  Mr.  President,  why  are  we  here  discussing  repeal  ? 
Great  Britain  asked  for  arbitration.  Why  are  we  here 
discussing  repeal  ? 

Mr.  President,  Mr.  Taft,  who  was  President  of  the  United 
States  when  this  controversy  arose,  was  in  favor  of  arbitra- 
tion. He  declared  for  arbitration  in  a  public  speech  made 
early  in  January,  1913.  I  have  not  that  speech  here,  but  I 
know  that  it  was  before  I  spoke  in  the  Senate  on  January  21, 
1913,  on  this  subject.  Mr.  Taft  substantially  repeated  what 
he  then  said  in  a  speech  at  Ottawa  on  January  thirty-first  of 
this  year,  in  which  he  said: 

Now,  we  shall  doubtless  have  to  arbitrate  the  matter,  unless  Congress 
reverses  itself.  There  are  some  hot-heads  that  talk  in  absurd  tones  about 
the  right  of  the  United  States  to  manage  her  own  canal  and  her  own 
property  as  she  likes,  no  matter  what  she  has  agreed  to;  but  that  is  all 
froth.    Those  are  the  "  explosivistas." 

President  Roosevelt,  with  all  his  courageous  and  comba- 
tive nature,  is  in  favor  of  arbitration.    President  Wilson  is 


304  INTERNATIONAL  SUBJECTS 

devoted  to  arbitration.  Senator  Lodge  is  in  favor  of  arbitra- 
tion. Senator  Sutherland  is  in  favor  of  arbitration.  I  refer 
to  them  because  they  have  announced  it  upon  the  floor  in 
this  debate.  Why  am  I  discussing  the  subject  here  ?  I  am  in 
favor  of  arbitration. 

Will  you  pardon  me  if  I  go  back  to  the  first  thing  that  I 
ever  said  on  this  subject  ?  When  the  Panama  Canal  bill  was 
up  in  this  body  on  July  15,  1912, 1  said: 

It  appears  quite  certain  to  me,  sir,  that  if  we  enact  the  provision  which 
is  now  before  us,  making  the  discrimination  against  which  Great  Britain 
protests,  as  the  other  party  to  this  international  agreement,  the  question 
raised  will  be  one  for  arbitration  under  our  existing  treaty  with  Great 
Britain.  It  will  present  the  simplest,  most  unquestionable  case  for  the 
submission  to  an  impartial  tribunal  of  the  contending  claims  of  the  two 
parties  to  the  contract.  We  could  not  refuse  to  arbitrate  the  question. 
Great  Britain  could  not  refuse  to  arbitrate  it.  It  is  the  kind  of  question 
which  our  treaty  of  arbitration  expressly  requires  to  be  arbitrated,  and  it 
is  a  question  which  ought  to  be  arbitrated. 

Instead  of  arguing  the  question,  I  shall  content  myself  with  suggesting 
to  the  Senate  that  any  legislation  which  may  be  enacted  ought  to  be 
framed  with  a  view  to  the  fact  that  this  is  a  matter  about  which  we  can- 
not finally  decide.  If  the  judgment  of  the  Senate  shall  be  in  favor  of  the 
policy  of  discrimination  —  and  mine  is  not;  I  think  it  is  wholly  im justifi- 
able and  unnecessary  —  nevertheless  we  should  exercise  om-  power  of 
legislation  with  a  view  to  the  fact  that  the  question  of  our  right  to  legis- 
late in  such  a  way  as  to  discriminate  is  one  which  may  be  decided  against 
us  by  the  international  tribunal  to  which  we  are  bound  to  submit  it. 

After  President  Taf t  had  made  his  public  speech  in  favor  of 
arbitration,  I  made  a  speech  in  the  Senate  on  June  21,  1913, 
in  favor  of  arbitration.  It  was  an  arbitration  speech,  but  I 
already  knew  that  the  obstacles  to  arbitration  which  were 
arising  might  be  insurmountable,  and  I  put  the  alterna- 
tive that  we  must  arbitrate  or  we  must  withdraw  from  the 
position  that  we  refused  to  arbitrate. 

Now,  let  me  answer  the  question  why  we  are  here.  I  will 
answer  by  reading  part  of  the  debate  in  the  Congressional 
Record  of  April  ninth.    The  Senator  from  Iowa  [Mr.  Ken- 


PANAMA  CANAL  TOLLS  305 

yon]  had  just  put  into  the  Record  the  letter  of  President 
Roosevelt  saying  that  he  considered  that  the  coastwise 
exemption  was  permissible  under  the  treaty,  but  that  it  was 
a  subject  that  ought  to  be  arbitrated.  He  had  wound  up  his 
letter  by  this : 

But  when  we  have  deliberately  and  solemnly  made  a  promise,  then  I 
most  emphatically  believe  that  this  nation  should  keep  that  promise 
just  as  an  honorable  man  would  do  as  regards  a  private  promise  of  the 
same  type.  Therefore  I  believe  it  to  be  the  bounden  duty  of  this  nation 
to  arbitrate  the  question  of  the  canal  tolls  imder  the  provisions  of  our 
arbitration  treaty. 

The  Senator  from  Mississippi  [Mr.  Williams]  said: 

Mr.  President,  I  agree  with  the  utterances  of  ex-President  Roosevelt 
to  the  effect  that  this  is  a  question  which  might  be  very  well  and  ought 
to  be  submitted  to  arbitration;  but  I  wish  to  ask  the  question  now,  Do 
the  followers  of  ex-President  Roosevelt  upon  this  floor  beUeve  it  ? 

If  it  had  been  thought  that  this  question  could  be  submitted  to  arbitra- 
tion, that  the  Senate  would  submit  it  to  arbitration,  the  question  never 
would  have  been  here  in  its  present  form.  When  we  were  discussing  this 
matter  when  the  Panama  Canal  Act  was  passed,  the  senior  Senator  from 
Iowa  [Mr.  Cummins],  the  colleague  of  the  Senator  who  has  just  had  this 
article  read,  in  his  place  upon  the  floor  of  the  Senate  said  that  this  was 
not  an  arbitrable  question.  He  differed  from  the  ex-President.  He 
thought  it  was  a  matter  that  affected  the  independence  and  the  vital 
interests  and  the  honor  of  the  United  States.  We  found,  or  thought  we 
found,  that  a  good  many  more  than  a  third  of  the  Senate  entertained  that 
idea,  and  they  were  not  willing  to  submit  the  question  to  arbitration. 

I  am  not  one  of  those  who  say  that  the  exemption  of  coastwise  shipping 
from  the  payment  of  tolls  was  a  violation  of  the  treaty  with  Great  Britain; 
but  I  am  one  of  those  who  say  that  the  position  which  the  Senate  or  its 
members  have  imdoubtedly  taken,  that  they  will  not  submit  this  ques- 
tion to  arbitration,  is  a  violation  of  another  treaty  which  we  have  made 
with  about  eight  or  nine  powers;  a  treaty  which  says  that  all  questions  of 
the  interpretation  of  treaties  shall  be  submitted  to  arbitration. 

Mr.  Galunger.    Mr.  President  — 

The  Vice-President.  Does  the  Senator  from  Mississippi  yield  to  the 
Senator  from  New  Hampshire  ? 

Mr.  Williams.    I  yield. 

Mr.  Gallinger.  I  have  been  a  pretty  constant  attendant  upon  the 
sessions  of  the  Senate  for  a  long  time,  and  I  do  not  recall  that  this  question 
ever  was  presented  to  the  Senate. 


306  INTERNATIONAL  SUBJECTS 

Mr.  Williams.  Oh,  I  did  not  say  it  was.  There  are  more  ways  of 
finding  out  what  Senators  think  than  by  presenting  a  question  to  the 
Senate.  Will  the  Senator  say  that  he  believes  two  thirds  of  the  Senate 
would  submit  this  question  to  arbitration,  or  will  he,  on  the  contrary, 
frankly  tell  me  that  he  does  not  believe  it  ? 

Mr.  Gallinqer.  I  am  always  frank  when  I  am  dealing  with  the 
Senator  from  Mississippi.  He  knows  that.  I  will  say  that  I  do  not 
think  two  thirds  of  the  Senate  would. 

Mr.  Williams.    No;  I  know  they  would  not. 

There  we  are.  That  is  why  we  are  here  —  all  of  us  who  are 
in  favor  of  arbitration,  we  who  from  the  beginning  declared 
that  this  question  ought  to  be  determined  by  an  impartial 
court  of  arbitration,  we  who  have  argued  for  it.  We  are  here 
now  supporting  this  repeal  bill  because,  in  the  judgment  of 
the  old  and  wise  and  experienced  Senators  best  qualified  to 
judge,  it  was  impossible  and  is  impossible  to  get  a  vote  of 
two  thirds  of  the  Senate  to  send  the  question  to  arbitration. 
There  were  other  evidences,  but  I  will  not  detain  you  to 
give  them.  I  could  read  from  the  records  of  the  Committee 
on  Interoceanic  Canals  matter  to  sustain  the  same  conclu- 
sion. A  majority  of  thirty-two  of  the  members  of  the  Senate 
would  be  necessary  to  send  this  case  to  arbitration.  We  are 
for  this  repeal  first  and  chiefly  because  we  cannot  arbitrate  it, 
and  to  refuse  to  arbitrate  it  would  be  discredit  and  dishonor 
for  our  country. 

Right  or  wrong,  whatever  rules  or  whatever  exceptions 
may  justify  it,  if  we  decide  this  in  our  favor  and  refuse  to 
arbitrate  we  are  discredited,  we  are  dishonored,  we  have 
repudiated  our  principles. 

Now,  let  any  man  who  votes  against  this  repeal  take  to 
himself  the  responsibihty  of  leading  his  country  into  that 
position.  I  for  one  shall  not.  If  every  constituent  I  have 
were  looking  with  hope  for  lower  freight  rates,  I  would  not. 
If  my  convictions  were  so  blinded  that  I  saw  only  the  lurid 
light  of  red  flame  when  a  railroad  is  mentioned,  I  would  not 


PANAMA  CANAL  TOLLS  307 

lead  my  country  into  such  a  position.  If  I  had  away  back  in 
my  childhood  learned  a  tradition  of  hatred  against  any  other 
country,  I  would  not  lead  my  own  country  into  such  a  posi- 
tion as  that.  I  will  vote  for  this  repeal  because  it  i»  the  surest 
and,  I  believe,  the  only  way  to  save  our  country  from  that 
most  discreditable  result. 

Mr.  President,  there  is  one  argument  which  I  have  omitted 
to  notice  against  this  repeal.  It  is  the  argument  that  Great 
Britain  alone  has  protested;  that  no  other  country  has  pro- 
tested or  remonstrated.  That  is  true,  so  far  as  I  know;  but 
let  me  call  your  attention  to  something  that  happened  in  the 
course  of  the  negotiations.  You  remember  that  the  Clayton- 
Bulwer  Treaty  provided  for  all  other  countries  coming  in  and 
agreeing  to  share  iu  protection.  You  remember  that  the 
first  Hay-Pauncef  ote  Treaty  provided  that  all  other  countries 
should  be  asked  to  adhere;  that  is  to  say,  to  become  parties 
to  the  treaty.  The  Senate  struck  it  out,  and  in  the  negotia- 
tion of  the  second  Hay-Pauncefote  Treaty  it  was  omitted. 
You  remember  that  Lord  Lansdowne  wished  to  have  in- 
serted in  the  treaty  a  provision  limiting  the  benefits  of  free- 
dom and  equality  of  the  canal  to  those  nations  which  should 
agree  to  observe  these  rules,  and  Mr.  Hay  objected  to  having 
the  agreement.  Here  is  what  Mr.  Choate  said  about  it,  in 
giving  an  accoimt  of  an  interview  with  Lord  Lansdowne: 

Secondly.  I  told  him  that  I  thought  his  amendment  of  the  first  clause 
of  the  third  article,  insisting  upon  bringing  in  other  nations  as  parties 
to  the  agreement  after  the  Senate  had  struck  out  of  the  Hay-Pauncefote 
Treaty  the  article  inviting  them  to  come  in,  would  seem  counter  to  the 
very  strong  conviction  in  the  Senate,  sustained,  as  I  believe,  by  an  equally 
strong  and  general  popular  conviction,  that  we  ought  not  to  accord  to 
other  nations  any  contract  rights  whatever  in  the  canal  which  we  were  to 
build  and  own;  that  none  of  them,  though  invited,  ever  came  in  or 
offered  to  come  in  imder  the  Clayton-Bulwer  Treaty;  that  at  present  they 
had  no  rights;  that  they  must  be  content  to  rely  on  our  national  honor  to 
keep  the  canal  open  to  them,  as  declared  in  this  treaty  with  Great  Britain. 


308  INTERNATIONAL  SUBJECTS 

Mr.  Hay  reports  to  the  Senate: 

This  was  represented  to  EKs  Majesty's  Government,  and  it  was  also 
insisted  on  the  part  of  the  United  States  that  there  was  a  strong  national 
feeling  among  the  peoples  of  the  United  States  against  giving  to  foreign 
powers  a  contract  right  to  intervene.  .  .  . 

That  they  must  rely  upon  the  good  faith  of  the  United  States  in  its 
declaration  to  Great  Britain  in  the  treaty  that  it  adopts  the  rules  and 
principles  of  neutralization  therein  set  forth,  and  that  it  was  not  quite 
correct  to  speak  of  the  nations  other  than  the  United  States  as  being 
boimd  by  the  rules  of  neutralization  set  forth  in  the  treaty. 

No  contract  rights  are  given  to  these  other  powers.  Our 
Senate  will  not  permit  it;  our  people  will  not  permit  it. 
France,  Germany,  Austria-Hungary,  Italy,  Russia,  and  all 
the  rest  are  lo  have  no  contract  right,  but  they  are  to  rely  on 
the  honor  of  the  United  States.  They  are  to  have  only  the 
good  faith  of  the  United  States  that  we  will  observe  the 
declarations  of  the  treaty.  They  have  made  no  representa- 
tion or  protest.  Oh,  no;  they  cannot.  They  have  no  contract 
rights.  They  have  nothing  but  our  honor;  nothing  but  the 
good  faith  of  America. 

Mr.  Williams.  Which  can  be  carried  out  by  no  one  except 
ourselves. 

Mr.  Root.  Yes.  Mr.  President,  who  is  the  guardian  of  a 
nation's  honor  but  her  own  sons  ?  Do  we  commit  its  keep- 
ing to  England  ?  Oh,  no;  not  to  England  nor  to  any  other 
power  on  earth  do  we  commit  the  duty  of  remonstrance 
against  our  breach  of  honor.  Om"  conscience  must  be  our 
monitor.  America  must  make  the  demand  upon  America 
that  her  honor  and  her  good  faith  be  kept  without  stain. 

It  is  no  petty  question  with  England  about  tolls.  This  is 
a  question  whether  the  United  States,  put  on  its  honor  with 
the  world,  is  going  to  make  good  the  public  declarations  that 
reach  back  beyond  our  lives,  whether  the  honor  and  good 
faith  of  the  United  States  is  as  good  as  its  bond,  whether 
acute  and  subtle  reasoning  is  to  be  applied  to  the  terms  of  a 


PANAMA  CANAL  TOLLS  309 

treaty  with  England  to  destroy  the  just  expectations  of  the 
world  upon  more  than  half  a  century  of  American  professions, 
upon  which  we  give  no  contract  right,  and  there  is  no  security 
but  honor  and  good  faith. 

Sir,  in  the  weak  and  inadequate  arguments  and  appeals 
that  I  have  made  upon  this  subject  I  speak  not  for  England. 
I  do  not  present  England's  case.  I  do  not  care  about  her 
case.  But  I  knew  something  about  this  treaty.  I  knew  what 
John  Hay  thought.  I  sat  next  him  in  the  Cabinet  of  Presi- 
dent McKinley  while  it  was  negotiated,  and  of  President 
Roosevelt  when  it  was  signed.  I  was  called  in  with  Senator 
Spooner  to  help  in  the  framing  of  the  Panama  Treaty  which 
makes  obedience  to  this  Hay-Pauncefote  Treaty  a  part  of  the 
stipulations  under  which  we  get  our  title.  I  negotiated  the 
treaty  with  Colombia  for  the  settlement  and  the  removal  of 
the  cloud  upon  the  title  to  the  Isthmus  of  Panama,  and  car- 
ried on  the  negotiations  with  England  under  which  she  gave 
her  assent  to  the  privileges  that  were  given  to  Colombia  in 
that  treaty.  I  have  had  to  have  a  full  conception  of  what 
this  treaty  meant  for  now  neariy  thirteen  years.  I  know 
what  IVIr.  Hay  felt  and  what  he  thought,  and,  Mr.  President, 
I  speak  for  all  the  forebears  that  went  before  me  in  America, 
and  for  the  generations  that  shall  come  after  me,  for  the 
honor  and  credit  of  our  country,  and  for  that  alone.  If  we 
do  not  guard  it,  who  shall  ? 

A  settlement  ?  We  are  told  that  the  speech  I  made  in 
January,  1913,  prevented  a  settlement.  If  I  could  believe 
that,  I  would  tell  it  to  my  children,  that  they  might  rejoice 
after  I  am  gone  at  that  one  service  rendered  to  their  country. 
Settle  ?  Compromise  ?  Compromise  the  honorable  obliga- 
tions of  our  country  ?  Never.  If  Great  Britain  should  be  so 
false  to  the  duty  she  assumed  in  imposing  upon  us  stipula- 
tions as  a  condition  of  our  having  the  right  to  build  the  canal, 
if  she  should  be  so  false  to  the  duty  toward  mankind  which 


310  INTERNATIONAL  SUBJECTS 

she  assumed  then,  as  to  commute  the  obligations  that  we 
took  upon  us  for  any  advantage  to  herself,  I  would  not  con- 
sent to  give  one  copper  farthing  to  have  her  withdraw  her 
demand. 

We  are  right  or  we  are  wrong.  If  the  rule  of  equality  which 
we  have  prescribed  for  all  the  world  is  infringed  by  this 
statute,  no  negotiations  with  Great  Britain  can  relieve  us  of 
our  obUgations  to  arbitrate  or  withdraw  the  statute,  our  obli- 
gations to  the  rest  of  the  world  to  arbitrate  or  withdraw  the 
statute,  our  obligations  to  ourselves,  to  our  own  consciences, 
our  own  sense  of  right  and  honor. 

There  is  even  more  than  the  higher  interests  of  an  ordinary 
nation  involved  in  this  question. 

It  is  now  some  eighty  years  since  De  Tocqueville,  in  his 

great  book,  Democraq/  in  America^  which  presented  to  the 

world  so  just  and  favoring  an  estimate  of  our  country,  wrote 

these  words: 

It  is  therefore  very  difficult  to  ascertain  at  present  what  degree  of 
sagacity  the  American  democracy  will  display  in  the  conduct  of  the  foreign 
policy  of  the  country,  and  upon  this  point  its  adversaries,  as  well  as  its 
advocates,  must  suspend  their  judgment.  As  for  myself,  I  have  no  hesi- 
tation in  avowing  my  conviction  that  it  is  most  especially  in  the  conduct 
of  foreign  relations  that  democratic  governments  appear  to  me  to  be 
decidedly  inferior  to  governments  carried  on  upon  diflferent  principles. 

Mr.  President,  I  have  not  believed  that  to  be  true.  I  do 
not  believe  it  to  be  true.  I  could  not  believe  it  and  not  de- 
spair of  the  future  of  our  civilization;  for  more  and  more  the 
control  of  all  foreign  as  well  as  domestic  aflFairs  is  coming  into 
the  hands  of  democracy.  More  and  more  the  judgment  of  the 
great  body  of  the  people  determines  the  actions  of  secretaries 
of  state  and  ministers  of  foreign  affairs  and  foreign  ambassa- 
dors and  ministers.  If  democracy  is  incompetent  to  deal 
with  foreign  affairs,  more  and  more  the  world  will  return  to 
the  chaos  of  international  strife  and  war. 


PANAMA  CANAL  TOLLS  311 

Our  country  has  taught  the  world  the  most  valuable  lesson 
of  modem  history,  if  not  of  all  history,  that  a  democracy  is 
competent  to  maintain  within  its  own  territory  peace  and 
order  with  justice.  Our  democracy  has  set  at  naught  all  the 
dismal  forebodings  of  its  enemies  and  compelled  an  unwilling 
assent  from  the  Governments  of  the  world  to  its  entire  com- 
petency to  rule  itself.  I  have  believed  and  I  do  believe  that 
the  power  of  a  developing  democracy  is  competent  to  the 
maintenance  of  international  peace  and  justice,  to  substitute 
kindly  consideration,  the  mutual  courtesy  and  forgiveness 
of  international  brotherhood  for  the  hatred  and  strife  of 
monarchical  and  dynastic  rule. 

Our  democracy  has  assumed  a  great  duty  and  asserts  a 
mighty  power.  I  have  hoped  that  all  diplomacy  would  be 
made  better,  purer,  nobler,  placed  on  a  higher  plane,  because 
America  was  a  democracy.  I  believe  it  has  been;  I  believe 
that  during  all  oiu*  history  the  right-thinking,  the  peace- 
loving,  the  justice-loving  people  of  America  have  sweetened 
and  ennobled  and  elevated  the  intercourse  of  nations  with 
each  other;  and  I  believe  that  now  is  a  great  opportimity  for 
another  step  forward  in  that  beneficent  and  noble  purpose 
for  civiUzation  that  goes  far  beyond  and  rises  far  above  the 
mere  question  of  tolls  or  a  mere  question  with  England.  It 
is  the  conduct  of  our  nation  in  conformity  with  the  highest 
principles  of  ethics  and  the  highest  dictates  of  that  religion 
which  aims  to  make  the  men  of  all  the  races  of  the  earth 
brothers  in  the  end. 

Mr.  President,  the  noble  American  who  negotiated  this 
treaty  as  Secretary  of  State  did  his  share  in  his  time  toward 
accomplishing  the  beneficent  work  of  ennobling  diplomacy 
and  the  relations  of  states.  He  did  it  with  purest  patriotism 
and  the  most  unswerving  devotion  to  the  interests  of  his  own 
country;  and  I  cannot  but  feel  that  in  preventing  our  coun- 
try from  repudiating  the  obligation  into  which  he  entered  to 


812  INTERNATIONAL  SUBJECTS 

make  possible  the  great  work  of  the  canal,  we  are  rendering  a 
service  to  his  memory  that  must  be  grateful  to  his  friends.  I 
recall  something  that  he  said  that  is  worth  remembering 
when  we  are  dealing  with  his  work  and  thinking  of  the  spirit 
in  which  he  wrought.    I  ask  you  to  listen  to  it: 

There  are  many  crosses  and  trials  in  the  life  of  one  who  is  endeavoring 
to  serve  the  commonwealth,  but  there  are  also  two  permanent  sources  of 
comfort.  One  is  the  support  and  sympathy  of  honest  and  reasonable 
people.  The  other  is  the  conviction  dwelling  forever,  like  a  well  of  living 
water,  in  the  hearts  of  all  of  us  who  have  faith  in  the  country,  that  all  we 
do,  in  the  fear  of  God  and  the  love  of  the  land,  will  somehow  be  overruled 
to  the  pubUc  good;  and  that  even  our  errors  and  failures  cannot  greatly 
check  the  irresistible  onward  march  of  this  mighty  repubhc,  the  con- 
summate evolution  of  countless  ages,  called  by  divine  voices  to  a  destiny 
grander  and  brighter  than  we  can  conceive,  and  moving  always,  con- 
sciously or  unconsciously,  along  lines  of  beneficent  achievement  whose 
constant  aims  and  ultimate  ends  are  peace  and  righteousness. 

I  invoke  for  the  consideration  of  this  obhgation  of  honor 
and  good  faith,  which  he  assumed  in  our  behalf  and  in  the 
name  of  our  country,  that  nobiUty  and  largeness  of  spirit 
which  he  exhibited  and  illustrated  in  his  life. 


THE  TREATY  OF  1832  WITH  RUSSIA 

THE  RIGHT  OF  EXPATRIATION 

December  19,  1911.  —  The  Senate  having  under  consideration  the  joint  resolu- 
tion (H.J.  Res.  166)  providing  for  the  termination  of  the  Treaty  of  1832  between  the 
United  States  and  Russia.  The  joint  resolution  was  approved  by  the  President 
December  21,  1911. 

The  first  article  of  the  treaty  of  December  18,  1832,  between  Russia  and  the 
United  States,  reads  as  follows: 

There  shall  be  between  the  territories  of  the  high  contracting  parties,  a 
reciprocal  liberty  of  commerce  and  navigation.     The  inhabitants  of  their 
respective  states  shall  mutually  have  liberty  to  enter  the  ports,  places,  and 
rivers  of  the  territories  of  each  party,  wherever  foreign  commerce  is  permitted. 
They  shall  be  at  liberty  to  sojourn  and  reside  in  all  parts  whatsoever  of  said 
territories,  in  order  to  attend  to  their  affairs,  and  they  shall  enjoy,  to  that 
effect,  the  same  security  and  protection  as  natives  of  the  coimtry  wherein  they 
reside,  on  condition  of  their  submitting  to  the  laws  and  ordinances  there 
prevailing,  and  particularly  to  the  regulations  in  force  concerning  conmierce. 
Article  10  of  the  treaty  provided  that  certain  concessions  previously  set  out  in  the 
article  "  shall  not  derogate,  in  any  manner,  from  the  force  of  the  laws  already  pub- 
lished, or  which  may  hereafter  be  published  by  His  Majesty  the  Emperor  of  all  the 
Russias:  to  prevent  the  emigration  of  his  subjects." 

DiflSculties  having  arisen  between  the  two  governments  concerning  Russian 
subjects  of  the  Jewish  faith  who  had  come  to  the  United  States  and  after  acquiring 
American  citizenship,  sought  to  return  to  Russia,  the  refusal  of  the  Russian  Govern- 
ment to  admit  such  persons  and  to  give  them  the  privileges  accorded  to  other 
American  citizens  under  this  treaty;  the  insistence  of  the  Russian  authorities  that 
there  should  be  noted  upon  the  passports  issued  to  such  citizens  that  the  bearers 
were  persons  of  the  Jewish  faith,  caused  great  friction  between  the  two  countries 
and  led  to  a  joint  resolution  of  Congress,  introduced  December  4,  1911,  in  the 
House,  to  abrogate  the  Treaty  of  1832.  The  resolution  as  passed  by  both  Houses  and 
signed  by  the  President,  read  as  follows: 

Whereas,  the  treaty  of  commerce  and  navigation  between  the  United  States 
and  Russia,  concluded  on  the  eighteenth  day  of  December,  eighteen  hundred 
and  thirty-two,  provides  in  Article  XII  thereof  that  it  "  shall  continue  in  force 
until  the  first  day  of  January,  in  the  year  of  our  Lord  eighteen  hxmdred  and 
thirty-nine,  and  if,  one  year  before  that  day,  one  of  the  high  contracting  parties 
shall  not  have  announced  to  the  other,  by  an  official  notification,  its  intention 
to  arrest  the  o|>eration  thereof,  this  treaty  shall  remain  obligatory  one  year 
beyond  that  day,  and  so  on  until  the  expiration  of  the  year  which  shall  com- 
mence after  the  date  of  a  similar  notification  ";  and 

Whereas,  on  the  seventeenth  day  of  December,  nineteen  hundred  and 
eleven,  the  President  caused  to  be  delivered  to  the  Imperial  Russian  Govern- 
ment, by  the  American  Ambassador  at  Saint  Petersburg,  an  official  notification 

SIS 


314  INTERNATIONAL  SUBJECTS 

on  behalf  of  the  Government  of  the  United  States,  announcing  intention  to 
terminate  the  operation  of  this  treaty  upon  the  expiration  of  the  year  commenc- 
ing on  the  first  of  January,  nineteen  himdred  and  twelve;  and 

Whereas,  said  treaty  is  no  longer  responsive  in  various  respects  to  the 
political  principles  and  commercial  needs  of  the  two  coim tries;  and 

Whereas,  the  constructions  placed  thereon  by  the  respective  contracting 
parties  differ  upon  matters  of  fundamental  importance  and  interest  to  each : 
Therefore  be  it 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled.  That  the  notice  thus  given  by  the  President  of 
the  United  States  to  the  Government  of  the  Empire  of  Russia  to  terminate  said 
treaty  in  accordance  with  the  terms  of  the  treaty  is  hereby  adopted  and  ratified. 

WERE  it  not  for  the  references  made  by  the  senior  Sen- 
ator from  Maryland  [Mr.  Rayner]  in  his  very  eloquent 
address  this  morning  to  some  statements  made  and  positions 
taken  by  me  I  should  not  venture  to  detain  the  Senate  from 
a  vote  on  these  resolutions  by  any  observations  of  mine. 
What  the  Senator  from  Maryland  referred  to  was  a  brief 
statement  which  I  made  in  the  Committee  on  Foreign  Rela- 
tions both  as  to  my  position  and  as  to  the  reasons  which 
led  to  it.  Of  course,  the  remarks  made  in  the  committee  have 
vanished  in  thin  air  and  enter  into  no  record;  and  accord- 
ingly the  very  brief  and  partial  observations  of  the  Senator 
from  Maryland  alone  remain.  I  will  endeavor  to  state 
substantially  what  I  stated  in  the  committee. 

I  am  clearly  of  the  opinion  that  the  United  States  ought  to 
terminate  the  Treaty  of  1832  with  Russia.  I  do  not  think, 
however,  that  the  House  resolution  which  was  addressed  to 
that  end  contains  an  adequate  statement  of  the  reasons 
why  we  ought  to  terminate  the  treaty,  and  I  do  think  that 
the  language  of  that  House  resolution  is  in  some  respects 
unfortunate. 

If  the  treaty,  Mr.  President,  properly  construed,  construed 
as  we  think  it  should  be  construed,  would  be  adequate  to 
meet  the  needs  of  our  people  and  would  be  in  conformity  to 
the  political  principles  which  we  profess,  then  I  should  say 
that  instead  of  abrogating  the  treaty  it  would  be  appropriate 


TREATY  WITH  RUSSIA  315 

to  assert  our  construction  and  to  call  upon  Russia  as  a  co- 
signatory with  us  of  The  Hague  conventions  regarding  the 
peaceable  settlement  of  international  differences  to  submit 
the  true  construction  of  the  treaty  to  arbitration;  and  then, 
if  the  decision  was  against  us,  we  could  take  whatever  course 
appeared  to  be  wise  at  that  time. 

The  trouble  with  taking  any  such  course,  however,  is  that 
no  matter  how  this  treaty  is  construed,  no  matter  how  any 
real  question  of  difference  between  us  and  Russia  regarding 
the  construction  is  resolved,  the  treaty  is  and  must  always 
remain  an  unsatisfactory  and  injurious  instrument  for  us  to 
continue  by  our  assent. 

During  the  eighty  years  which  have  elapsed  since  the  mak- 
ing of  the  treaty,  there  has  been  a  very  momentous  change  in 
the  attitude  of  the  greater  part  of  the  civilized  world  toward 
the  subject-matter  of  the  treaty,  and  we  have  shared  in  that 
change. 

The  treaty  in  its  first  article  provides  that  the  inhabitants 

of  the  respective  states  shall  have  liberty  to  go  into  each 

other's  territories  on  condition  of  their  submitting  to  the 

laws  and  ordinances  there  prevailing,  and  particularly  to 

the  regulations  in  force  concerning  commerce;  and  the  tenth 

article  of  the  treaty  concludes  with  this  paragraph: 

But  this  article  shall  not  derogate  in  any  manner  from  the  force  of  the 
laws  abeady  published,  or  which  may  hereafter  be  pubUshed  by  His  Majesty 
the  Emperor  of  all  the  Russias,  to  prevent  the  emigration  of  his  subjects. 

There  is  what  appears  to  be  and  is  generally  considered  to 
be  a  clear  recognition  on  the  part  of  the  United  States  of  the 
right  of  Russia  to  prohibit  the  emigration  of  her  subjects. 

In  1832,  when  this  treaty  was  made,  the  United  States 
equally  with  Russia  maintained  the  doctrine  of  indefeasible 
allegiance.  Only  shortly  before,  in  the  year  1797,  the  Su- 
preme Court  of  the  United  States  had  asserted  that  doctrine 
in  the  famous  WiUiams  case. 


316  INTERNATIONAL  SUBJECTS 

Williams  was  a  native  American  citizen.  He  had  left  our 
country.  He  had  gone  to  France.  He  had  become  natural- 
ized as  a  French  citizen.  He  had  entered  into  the  military 
or  naval  forces  of  France  and  taken  part  in  conflicts  between 
France  and  Great  Britain.  The  course  that  he  followed  was  a 
course  that  was  forbidden  by  the  laws  of  the  United  States  to 
American  citizens;  and  sometime  afterwards,  returning  to 
this  country  upon  a  visit,  Williams  was  arrested,  indicted, 
and  tried  for  a  violation  of  those  laws.  He  pleaded  and  un- 
dertook to  prove  that  he  had  renounced  his  allegiance  to  the 
United  States  and  had  become  a  French  citizen,  and  that 
evidence  was  excluded;  and  the  exclusion  was  sustained  by 
the  Supreme  Court  of  the  United  States  upon  the  ground  that 
he  could  not  divest  himself  of  his  allegiance  to  his  native 
coimtry  and  become  a  citizen  of  another  country. 

In  1830,  immediately  before  the  negotiation  of  this  treaty, 
there  came  up  in  the  Supreme  Court  of  the  United  States  the 
case  of  Shank  v.  Dupont,  which  turned  upon  the  question 
whether  a  citizen  could  divest  himself  of  citizenship  and  ac- 
quire citizenship  in  another  country.  The  Supreme  Court  of 
the  United  States,  Mr.  Justice  Story  delivering  the  opinion, 
said: 

The  general  doctrine  is  that  no  persons  can,  by  any  act  of  their  own, 
without  the  consent  of  the  Government,  put  off  their  allegiance  and 
become  aliens. 

And  the  case  was  decided  on  that  ground. 

In  that  same  year  Mr.  Kent,  in  his  Commentaries^  which 
were  published  from  1826  to  1880,  declared  the  general  rule 
maintained  by  the  United  States  to  be  the  rule  of  the  common 
law  of  England  of  indefeasible  allegiance. 

So,  when  this  treaty  was  made  and  we  gave  our  express 
recognition  of  the  right  of  the  Emperor  of  Russia  to  make  laws 
to  prevent  the  emigration  of  his  subjects,  it  was  a  treaty  be- 
tween two  powers  both  of  which  maintained  that  no  subject 


TREATY  WITH  RUSSIA  317 

or  citizen  of  theirs  could  ever  emigrate  to  the  other  country 
and  become  a  citizen  of  the  other  country  without  the  express 
assent  of  his  native  land. 

That,  sir,  was  the  universal  doctrine  of  the  civilized  world 
at  that  time.  We  held  to  that  doctrine  for  many  years,  until 
in  1848,  James  Buchanan  —  to  his  eternal  credit  be  it  said  — 
as  Secretary  of  State  of  the  United  States,  first  announced 
the  repudiation  by  the  Government  of  the  United  States  of 
that  theory  and  declared  the  inalienable  right  of  man  to 
change  his  domicile  and  to  change  his  allegiance  at  his  own 
will. 

There  were  varj^ing  views  expressed.  After  Mr.  Buchanan, 
with  views  reverting  to  the  old  doctrine,  came  Webster  and 
Everett  and  Marcy,  until  Buchanan  became  President,  and 
then  he  again  asserted  his  view,  and  so  effectively  that  it  has 
never  been  departed  from  by  the  United  States.  It  was  as- 
serted by  Buchanan  as  President.  It  was  reasoned  out  by 
Jeremiah  Black  as  Attorney-General  of  the  United  States,  in 
dealing  with  the  Ernst  case,  that  arose  regarding  the  effect  of 
the  naturalization  here  of  a  citizen  of  Hanover.  In  that  case, 
by  the  action  of  these  great  statesmen,  to  whom  suflficient 
honor  has  never  been  given  for  the  firmness  and  constancy 
with  which  they  asserted  that  view  —  in  that  case  the  posi- 
tion of  the  United  States  was  irrevocably  changed,  repudiat- 
ing the  view  she  had  taken  at  the  time  this  treaty  was  made 
and  repudiating  the  view  under  which  she  gave  in  this  treaty 
her  assent  to  the  right  of  the  Emperor  of  Russia  to  prevent 
the  emigration  of  his  subjects. 

Of  course,  sir,  this  change  had  come  along  with  a  change  in 
conditions.  WTien  this  treaty  was  made,  the  great  tide  of 
immigration  to  this  country  had  not  begim.  It  came  first 
after  the  famine  in  Ireland  in  1843.  It  was  swelled  by  a 
stream  from  a  different  source  after  the  political  troubles  on 
the  Continent  in  1848.    It  was  still  increased  through  the 


818  INTERNATIONAL  SUBJECTS 

continual  succession  of  wars  in  which  Europe  was  engaged  for 
the  quarter  of  a  century  beginning  with  the  Crimean  War  in 
1853. 

In  the  meantime,  whereas  the  greatest  number  of  immi- 
grants that  ever  came  to  these  shores,  prior  to  1832,  was 
found  in  the  immigration,  I  think,  of  1830,  of  27,382,  and 
whereas  the  first  year  when  the  immigration  passed  a  hun- 
dred thousand  was  in  1842,  when  it  reached  104,565,  this 
stream  swelled  still  year  after  year  until  hundreds  of  thou- 
sands grew  to  millions,  and  a  very  large  part  of  our  people 
came  to  be  composed  either  of  emigrants  or  the  children  of 
emigrants;  and  our  repudiation  of  the  old  doctrine  of  inde- 
feasible allegiance  was  a  repudiation  based  upon  that  clearer 
view  which  came  from  an  immediate  contact  with  the  living 
needs  of  mankind  as  exhibited  by  those  who  came  to  us  from 
their  old  homes. 

This  process,  Mr.  President,  greatly  accelerated  by  the 
active  interest  excited  in  the  Warren  and  Costello  cases  with 
Great  Britain  in  1866,  culminated  and  found  its  compre- 
hensive and  effective  declaration  on  the  part  of  Congress  in 
the  statute  of  July  27,  1868,  which  has  been  referred  to  by 
both  the  Senator  from  Maryland  and  the  Senator  from 
Massachusetts.    That  statute  recites: 

Whereas  the  right  of  expatriation  is  a  natural  and  inherent  right  of  all 
people. 

And  then  it  proceeds  to  use  terms  which  are  pointed 
directly  at  and  are  designed  to  do  away  completely  with  the 
effect  of  all  the  expressions  to  which  I  have  referred  during 
the  period  of  time  in  which  the  United  States  maintained  the 
doctrine  of  indefeasible  allegiance.  It  was  the  clear  intention 
of  Congress  in  passing  that  statute  not  to  deny  that  we  had 
ever  maintained  the  doctrine,  but  to  give  clear  notice  that  we 
wiped  out  the  past  and  took  a  new  departure;  for  the  statute 
says: 


TREATY  WITH  RUSSIA  319 

Any  declaration,  instruction,  opinion,  order,  or  decision  of  any  officers 
of  this  Government  which  denies,  restricts,  impairs,  or  questions  the  right 
of  expatriation  is  hereby  declared  inconsistent  with  the  fimdamental 
principles  of  this  Government. 

That  comes  very  near,  Mr.  President,  the  repeal  of  this 
treaty  which  gives  assent  to  the  right  of  the  Emperor  of  all 
the  Russias  to  prevent  by  law  the  emigration  of  his  subjects. 
It  clearly  establishes  a  position  on  the  part  of  the  United 
States  wholly  inconsistent  with  the  treaty  in  that  respect. 

With  this  radical  change  in  position,  sir,  the  representa- 
tives of  the  United  States  in  its  foreign  policy  began  upon  a 
process  which  I  think  has  rarely  been  equaled  in  the  records 
of  any  nation  —  a  process  most  creditable  to  the  good  sense 
and  wisdom  of  the  American  people  and  of  their  representa- 
tives, and  which,  by  steady,  temperate,  and  judicious  rep- 
resentation and  appeal  to  friendship,  to  reason,  to  justice, 
to  the  desire  for  good-fellowship  and  friendly  relations,  has, 
step  by  step,  brought  nearly  all  the  governments  of  the 
civilized  nations  of  the  earth  to  leave  the  old  position  and  to 
stand  by  the  side  of  the  United  States  in  the  new. 

By  the  Bancroft  treaties  of  1868,  the  year  in  which  this 
statute  was  passed,  the  adhesion  of  the  North  German  Con- 
federation and  substantially  all  of  the  states  which  now  make 
up  the  German  Empire  was  secured  to  the  doctrine  of  the 
right  of  expatriation  and  change  of  allegiance.  By  the  treaty 
of  May  26,  1869,  with  Sweden  and  Norway,  and  of  July  20, 
1872,  with  Denmark,  the  adhesion  of  the  Scandinavian  states 
to  the  same  doctrine  of  international  human  freedom  was 
secured.  By  the  treaty  of  May  13,  1870,  Great  Britain  was 
brought  to  abandon  the  immemorial  rule  of  her  common  law, 
whence  we  derived  our  doctrine  of  indefeasible  allegiance  and 
to  adhere  to  the  new  rule.  By  the  treaty  of  November  16, 
1868,  Belgium  adhered,  and  by  the  treaty  of  September  20, 
1870,  Austria-Hungary  came  into  the  same  category. 


320  INTERNATIONAL  SUBJECTS 

So  you  will  perceive,  Mr.  President,  that  step  by  step  we 
secured  the  adoption  of  the  new  rule  answering  to  the  suc- 
cessive waves  of  immigration  to  our  shores  from  different 
countries.  The  Irish  immigration  was  set  free  by  the  treaty 
with  England;  the  Scandinavian  immigration  was  set  free 
by  the  treaties  with  Sweden  and  Norway  and  Denmark;  the 
German  immigration  was  set  free  by  the  Bancroft  treaties 
with  the  German  states.  The  Hungarian  immigration  was 
cared  for,  together  with  the  immigration  of  Croats  and  Slavs 
and  other  Austrian  peoples,  by  the  treaty  with  Austria- 
Hungary.  France  and  Italy  in  their  treaties  of  commerce 
and  navigation  with  us  omitted  the  last  clause  as  contained 
in  article  10  of  the  Russian  treaty,  and  in  their  laws  have 
recognized  the  right  of  emigration  and  naturahzation. 

The  position  to  which  the  world  was  brought  by  this  long 

course  of  diplomatic  effort  and  achievement  is  well  stated  by 

a  very  celebrated  Russian  publicist,  Frederick  de  Martens, 

in  his  recent  work  entitled  Traite  de  droit  international.    I 

translate  from  the  French.    He  says: 

With  the  exception  of  Russia,  all  the  civilized  contemporaneous  states 
are  imbued  with  the  conviction  that  the  right  of  emigration  is  one  of  the 
inalienable  rights  pertaining  to  each  citizen,  and  that  every  individual  is 
free  to  change  his  nationality.  This  modification  has  taken  place,  thanks 
above  all  to  the  profound  transformation  which  has  followed  in  the  present 
century  the  old  poUtical  order.  Liberty  of  emigration  is  the  direct  conse- 
quence of  the  new  social  and  p>oUtical  order  which  has  for  its  basis  resi)ect 
for  the  human  personahty  and  for  the  interests  which  surround  it. 

So,  Mr.  President,  the  maintenance  of  this  treaty  is  wholly 
inconsistent  with  the  solemnly  declared  principles  of  the 
United  States.  It  is  a  part  of  an  old  condition  of  things  long 
since  passed  away.  It  is  inconsistent  with  the  view  taken  by 
the  greater  part  of  the  civilized  world,  and  I  consider  that  the 
first  and  great  reason  for  ending  the  treaty  is  that  we  may 
set  ourselves  right  with  our  own  principles  and  no  longer 
occupy  the  false  position  of  consenting  to  that  negation  of  our 


TREATY  WITH  RUSSIA  321 

principles  which  is  involved  in  the  assent  to  the  preven- 
tion by  the  Emperor  of  Russia  of  the  emigration  of  his  own 
subjects. 

And,  Mr.  President,  no  change  in  construction  of  the  treaty 
that  we  can  expect,  that  we  can  look  forward  to  from  diplo- 
macy or  from  the  result  of  an  arbitration,  could  possibly 
change  this  characteristic  of  the  treaty.  The  time  has  clearly 
come  —  I  think  the  time  had  come  when  we  passed  that 
statute  in  1868,  but  the  time  has  clearly  come  now  —  when 
consistency  and  regard  for  our  own  principles  require  us  to 
do  what  the  treaty  contemplated  —  to  say  that  the  change  of 
conditions  calls  upon  us  to  give  the  notice  provided  for  its 
termination. 

Mr.  President,  that  characteristic  of  the  treaty  covers 
really  the  great  part;  it  covers  the  greater  part  of  the  field. 
While  it  is  doubtless  true  that  some  native-bom  Americans 
have  been  excluded  from  Russia  when  they  ought  not  to  have 
been  excluded  under  the  treaty,  while  it  is  doubtless  true 
that  Russia  puts  upon  the  treaty  a  construction  differing 
from  ours  as  to  the  nature  of  the  regulations  which  she  is 
entitled  to  impose  upon  American  citizens  who  are  Jews, 
when  they  come  into  her  territory,  still  the  number  of  such 
people  is  comparatively  small,  and  the  great  field  is  the  field 
which  affects  these  milHons  of  new  arrivals  here  who  have 
intimate  and  direct  relations  with  the  country  from  which 
they  came  and  from  which  they  are  cut  off  by  virtue  of 
the  necessary  construction  of  this  treaty  and  by  virtue  of  the 
severe  statutes  which  the  Senator  from  Maryland  has  read. 

Mr.  Bailey.  If  it  would  not  interrupt  the  Senator  from 
New  York  just  now,  I  should  like  to  ask  him  how  he  recon- 
ciles the  declaration  that  the  right  of  expatriation  is  both  a 
natural  and  a  political  right,  with  our  Chinese  policy.  If  a 
Chinaman  has  a  natural  and  political  right  to  come  to  this 
coxmtry,  then  we  can  have  no  right  to  forbid  his  coming;  and 


322  INTERNATIONAL  SUBJECTS 

wholly  independent  of  the  question  now  under  consideration, 
I  would  not  like  to  commit  myself  to  the  extent  of  conceding 
that. 

Mr.  Root.  Mr.  President,  the  Senator  from  Texas  has 
given  to  the  declaration  of  the  right  of  expatriation  a  meaning 
which  goes  further  than  I  think  is  warranted. 

I  have  planted  myself  upon  the  declaration  of  the  statute  of 
1868,  which  I  think  is  the  final  and  authoritative  declaration 
of  the  policy  and  the  view  of  this  country.  The  right  of  ex- 
patriation is  the  right  of  a  man  to  leave  his  country  and  go  to 
another,  but  it  carries  no  right  on  his  part  to  force  himself 
into  any  other  country  that  chooses  to  reject  him. 

Mr.  Bailey.  But,  Mr.  President,  if  the  Senator  will  per- 
mit me,  the  right  to  leave  your  own  country  is  a  barren  one 
unless  you  can  go  into  some  other  country.  If  every  country 
on  the  globe  would  adopt  our  policy  against  Chinese  immi- 
gration, then  the  Chinaman  would  have  a  right  to  leave  his 
country,  but  there  would  be  no  country  to  which  he  could  go, 
and  his  right  would  be  an  utteriy  barren  one. 

Mr.  Root.    I  think  entirely  so. 

Mr.  Bailey.  I  can  hardly  bring  myself  to  think  that  logi- 
cally there  is  a  natural  right  which  can  be  defeated  by  the 
action  of  other  people.  I  will  say  to  the  Senator  from  New 
York  if  the  Chinese  question  had  been  as  vital  then  as  it  is 
now,  I  very  seriously  doubt  if  the  statute  of  1868  would  have 
been  quite  as  broad  as  it  is. 

Mr.  Root.  That  may  be.  I  am  not  going  to  discuss  the 
Chinese  question  further  than  to  take  advantage  of  the  atten- 
tion called  to  it  by  the  Senator  from  Texas,  to  say  that  it  be- 
hooves us  to  be  quite  conservative  and  cautious  in  the  official 
use  of  language  about  this  Russian  treaty,  lest  we  find  our- 
selves in  a  moment  of  enthusiasm  or  irritation  betrayed  into 
an  assertion  of  propositions  which  will  come  back  to  plague 
us  when  they  are  turned  the  other  way. 


TREATY  WITH  RUSSIA  323 

One  very  good  reason,  Mr.  President,  for  giving  the  notice 
to  terminate  this  treaty  in  simple  terms  and  without  mider- 
taking  to  specify  reasons  is  that  there  are  many,  I  suppose 
millions,  of  subjects  of  Russia  of  Mongolian  birth,  whom  we 
would  not  admit  to  our  country,  treaty  or  no  treaty,  and 
we  had  better  not  undertake  to  specify  reasons  which  will  in- 
volve us  in  making  nice  discriminations  in  regard  to  the  dif- 
ference between  Russia's  admitting  American  citizens  there 
and  our  admitting  Russian  subjects  here,  in  advance  of 
thorough  and  careful  consideration  of  the  true  meaning  and 
effect  of  what  we  say. 

There  is  one  other  reason,  Mr.  President,  why  this  treaty  is 
not  satisfactory,  and  that  is,  it  is  exceedingly  limited  in  its 
scope.  The  construction  generally  put  upon  it  is,  that  it 
applies  to  entering  Russia  only  for  commercial  purposes.  I 
do  not  know  that  that  can  be  successfully  contested.  So  the 
treaty  itself  and  all  questions  regarding  the  proper  enforce- 
ment and  construction  of  the  treaty  cover  but  a  small  comer 
of  the  real  difficulty.  The  only  way  to  solve  the  difficulty  is 
to  get  rid  of  the  treaty  and  begin  anew.  In  doing  that,  sir, 
we  will  avoid  one  very  serious  objection  which  now  exists  to 
our  relations  with  Russia. 

When  the  treaty  has  been  terminated,  if  no  new  treaty 
is  made  in  its  place,  nobody  from  the  United  States  will  have 
a  right  to  enter  Russia.  In  that  event  the  effect  will  not 
be  to  admit  to  Russia  the  people  who  have  been  denied 
entrance  there,  but  it  will  be  to  exclude  from  Russia  all  other 
Americans. 

That  in  some  respects  would  be  unfortunate,  but,  Mr. 
President,  it  would  be  better  than  the  present.  It  is  better 
that  there  should  not  be  any  discrimination  which  constitutes 
two  sharply  separated  classes  of  our  citizens.  I  would  rather 
have  one  great  body  of  American  citizens  who  have  no  right 
to  enter  a  foreign  land  than  to  have  two  bodies  of  American 


324  INTERNATIONAL  SUBJECTS 

citizens  one  of  which  has  the  right  under  our  treaties  to  enter 
and  the  other  of  which  has  no  right. 

So,  while  I  hope  that  a  new  treaty  will  be  made,  which  will 
give  the  right  of  entry  to  those  who  have  not  had  it  hitherto, 
and  I  think  it  is  the  duty  of  our  Government  to  bend  every 
effort  toward  bringing  that  about,  still,  if  we  must  go  with  no 
treaty,  I  shall  be  better  satisfied  than  to  have  this  treaty  of 
discrimination  continued. 

Now  a  word,  Mr.  President,  regarding  the  terms  that  we 
are  to  use.  Of  course  there  is  occasion  to  be  more  guarded  in 
language  between  sovereign  states,  which  have  over  them 
nobody  to  control  their  action,  than  there  is  between  men, 
who  can  be  obliged  to  keep  the  peace  by  police  officers  and 
the  law.  The  peace  of  the  world  rests  upon  the  observance 
of  studied  and  careful  courtesy  in  the  relations  between 
nations. 

Mr.  President,  among  men  there  are  more  quarrels,  there 
are  more  assaults,  there  are  more  murders  brought  about  by 
insults,  by  wounded  feelings,  and  injured  honor  than  there 
are  by  the  deprivation  of  property  or  injmy  to  pecuniary 
rights.  Among  nations  it  is  doubly  so,  because  a  jealous 
regard  for  independence  and  national  honor  are  the  part 
of  patriotism  the  world  over.  No  one  can  respect  a  man 
who  does  not  resent  an  insult  to  his  country.  No  people  on 
earth  are  quicker  to  resent  it  than  the  people  of  the  United 
States. 

It  is  diflScult  for  men  in  one  country  to  realize  how  their 
words  will  be  imderstood  and  received  in  another  country. 
You  and  I  are  in  the  habit  of  thinking  alike,  talking  alike. 
We  are  in  the  same  siuroundings.  We  can  understand  what 
impulses  and  feelings  move  each  other.  When  we  are  using 
words  which  relate  to  people  far  away,  on  the  other  side  of 
the  earth,  we  can  know  but  little  of  the  weight,  stress,  and 
effect  which  wiU  be  produced  in  those  far  distant  and  alien 


TREATY  WITH  RUSSIA  S95 

lands.  Different  conditions  may  give  new  and  different 
meanings  to  the  words. 

So  it  is  that  for  the  peace  of  the  world,  that  nations  may  so 
conduct  their  affairs  as  to  enable  their  people  to  live  in  peace 
and  prosperity,  it  has  come  to  be  the  universal  custom  to  use 
especially  guarded  and  courteous  terms  in  diplomatic  inter- 
course. It  is  not  frill  and  nonsense;  it  is  not  fancy  or  fad; 
it  is  the  teaching  of  the  universal  experience  of  civilization. 

I  am  most  anxious  that  in  adopting  a  resolution  to  put  an 
end  to  this  treaty  we  should  do  it  in  accordance  with  that 
obligation  of  courtesy  and  respect  which  the  peace  and 
dignity  of  mankind  require. 

Mr.  President,  accusations  of  violations  of  duty,  imputa- 
tion, insinuations,  all  controversial  matter  should  be  ex- 
cluded from  a  resolution  like  this.  If  we  assert  our  adherence 
to  a  great  principle  of  acknowledged  right  as  a  reason  for 
putting  an  end  to  this  treaty  we  imply  that  Russia  is  opposed 
to  it.  We  cannot  vaunt  ourselves,  our  principles,  our  virtues, 
our  love  of  freedom  in  this  resolution,  without  implying  a 
charge  against  Russia  that  she  is  without  them. 

Mr.  President,  were  it  true,  what  would  be  the  effect  of  a 
charge  made  expressly  or  by  implication  but  to  begin  a  con- 
troversy ?  Are  we  desirous  to  end  this  treaty  and  to  secure  a 
better  one,  or  are  we  desirous  to  begin  a  controversy  that  will 
end  we  cannot  tell  where  ? 

Mr.  President,  let  me  say  one  further  thing.  If  in  this 
resolution  we  depart  from  that  dignified  and  courteous  treat- 
ment which  the  customs  of  international  intercourse  through- 
out the  world  require,  the  sympathy  of  every  civilized  people 
on  the  face  of  the  earth  will  be  with  the  nation  that  has  been 
offended,  and  the  tremendous  power  of  the  public  opinion  of 
mankind  will  be  behind  a  refusal  of  all  the  efforts  of  our 
diplomacy  to  secure  a  new  arrangement  which  may  benefit 
our  fellow-citizens  with  whose  woes  we  sympathize  so  deeply. 


326  INTERNATIONAL  SUBJECTS 

It  not  only  will  aJBFect  us  in  this  particular  case,  but  it  will 
afifect  the  position,  the  prestige,  the  good  name,  and  credit  of 
our  country  in  all  its  foreign  relations.  It  will  leave  a  condi- 
tion of  feeling  between  us  and  Russia,  our  traditional  friend, 
which  it  would  take  generations  to  do  away,  and  it  will  leave 
us  in  all  the  countries  of  the  world  lower  in  credit  and  less 
esteemed  than  we  have  been  hitherto. 


THE  MEXICAN  RESOLUTION 

On  April  21,  1914,  the  Senate  as  in  Committee  of  the  Whole  had  under  con- 
sideration the  joint  resolution  (H.  J.  Res.  251),  which  declared: 

That  the  President  of  the  United  States  is  justified  in  the  employment  of  the 
armed  forces  of  the  United  States  to  enforce  the  demands  made  upon  Vic- 
toriano  Huerta  for  unequivocal  amends  to  the  Government  of  the  United 
States  for  afiFronts  and  indignities  committed  against  this  Government  by 
General  Huerta  and  his  representatives. 

To  this  resolution  Senator  Henry  Cabot  Lodge  of  Massachusetts  proposed  a 
substitute  which  further  provided: 

That  the  United  States  disclaims  any  hostility  to  the  Mexican  people  or  any 
piuTX)se  to  make  war  upon  Mexico. 
As  thus  amended,  the  resolution  passed  the  Senate  and  was  agreed  to  by  the 
House  of  Representatives,  Sixty-third  Congress,  Second  session. 
Mr.  Root  said: 

MR.  PRESIDENT,  I  shall  not  prolong  very  much  this 
discussion,  for  I  think  that  whatever  action  we  take 
ought  to  be  taken  today  without  further  delay.  I  do  wish, 
however,  to  state  the  reasons  for  supporting  the  substitute 
ofiFered  by  the  Senator  from  Massachusetts  [Mr.  Lodge]  in 
lieu  of  the  resolution  reported  by  the  Committee  on  Foreign 
Relations. 

The  President  has  asked  Congress  for  its  approval  of  a 
course  which  he  purposed  to  follow  to  compel  amends  for  an 
insult  to  the  flag  of  the  United  States.  A  resolution  has  come 
from  the  House  declaring  that  the  President  is  justified  in  the 
course  he  proposes  and  naming  General  Huerta  as  the  person 
against  whom  the  present  action  is  understood  to  be  directed. 
The  Committee  on  Foreign  Relations  has  reported  a  substi- 
tute resolution  which  omits  all  reference  by  name  to  General 
Huerta,  but  so  refers  to  the  statements  made  by  the  President 
in  his  address  that  in  explaining  the  justification  of  the  course 
which  he  proposes,  the  effect  is  substantially  the  same.  We 
are  not  asked  to  authorize  action;  we  are  asked  to  justify  it. 

827 


328  INTERNATIONAL  SUBJECTS 

Mr.  President,  I  have  the  highest  respect  —  more  than 
respect,  I  have  regard  and  admiration  —  for  the  President  of 
the  United  States.  I  have  entire  confidence  in  the  sincerity 
of  his  purpose,  in  the  lofty  quahty  of  the  ideals  which  he 
pursues,  and  in  the  genuineness  of  his  adherence  to  peace. 

But  we  are  asked  not  to  express  our  opinion  of  the  Presi- 
dent of  the  United  States,  not  to  express  our  confidence  in 
him  or  in  his  purposes.  We  are  asked  in  the  exercise  of  our 
duty  as  a  part  of  the  Government  of  the  United  States  to 
declare  a  specified  course  of  conduct  under  specified  condi- 
tions to  be  justified.  It  is  our  duty  that  we  are  to  perform, 
our  duty  as  a  part  of  the  Government  of  the  United  States, 
our  duty  to  the  himdred  millions  of  people  of  the  United 
States,  to  the  community  of  nations,  to  the  credit  and  good 
name  of  our  country,  to  the  honor  and  glory  that  this  great 
democracy  has  intrusted  to  our  hands  as  its  representatives. 
This  duty  we  are  called  upon  to  perform. 

The  course  which  is  proposed  is  the  forcible  armed  com- 
pulsion of  the  people  or  some  of  the  people  of  a  friendly 
nation,  the  armed  compulsion  of  a  government  which  I  think 
we  all  are  agreed  is  an  existing  de  facto  government,  having 
in  its  control  the  greater  part  of  the  territory  of  Mexico  — 
the  armed  compulsion  of  that  government  to  make  amends 
to  the  United  States  for  an  insult  to  its  flag. 

What  is  the  justification  ?  We  cannot  justify,  sir,  upon 
confidence  which  we  all  have  in  the  President.  We  must 
justify  upon  grounds  which  commend  themselves  to  our  con- 
sciences, to  our  intelligence,  to  the  conscience  of  the  Amer- 
ican people,  and  to  the  deliberate  judgment  of  the  civilized 
world. 

What  is  the  justification  ?  Observe,  sir,  I  do  not  say  that 
there  is  no  justification.  I  ask  what  it  is.  In  the  address  of 
the  President,  in  the  plain  implications  and  exclusive  infer- 
ences of  the  resolution  which  came  from  the  House,  and 


THE  MEXICAN  RESOLUTION  329 

equally  in  the  resolution  reported  by  the  committee,  the 
justification  is  to  be  found  in  a  single  incident.  That  incident 
was  this:  A  boat-load  of  sailors  in  the  uniform  of  the  United 
States,  upon  a  boat  flying  the  flag  of  the  United  States, 
landed  the  other  day  at  a  wharf  in  Tampico  and  were  arrested 
by  an  officer  in  charge  of  a  guard,  taken  through  the  streets, 
presently  returned  to  the  boat  and  set  free  —  a  very  gross 
offense  to  the  dignity  of  the  United  States,  an  insult  which 
cannot  be  ignored. 

But,  sir,  immediate  amends  were  made.  The  action  of  the 
officer  who  made  the  arrest  was  disavowed  by  the  govern- 
ment under  which  he  served,  the  de  facto  government  of 
Mexico,  under  the  de  facto  presidency  of  General  Huerta. 
It  is  stated  that  the  officer  was  in  turn  arrested  and  was  to 
be  punished.  The  commandant  at  Tampico  apologized  for 
the  act,  and  promptly  upon  being  advised  of  the  circum- 
stance, the  head  of  the  de  facto  government.  General  Huerta, 
also  apologized.  Those  amends,  which  would  be  all  that 
could  be  expected  from  private  individuals,  were,  neverthe- 
less, not  satisfactory  and  not  sufficient  for  the  officer  in  com- 
mand of  the  American  fleet  or  squadron  at  Tampico,  and  he 
demanded  a  formal  salute  to  the  American  flag. 

Mr.  President,  I  agree  with  the  admiral  that  the  amends 
were  not  sufficient  as  coming  from  the  de  facto  government 
and  that  there  should  have  been  a  salute  to  the  American  flag, 
but  it  appears  that  there  was  an  interposition  by  our  Govern- 
ment; there  were  communications  between  our  State  Depart- 
ment and  bur  charge  in  the  City  of  Mexico,  representations 
to  the  de  facto  government  in  Mexico,  negotiations  and 
conversations,  as  to  the  character  of  the  further  amends  that 
should  be  made.  The  matter  came  plainly  to  be  a  discussion 
between  the  Government  of  the  United  States  and  the  de 
facto  government  of  Mexico.  Not  about  the  quality  of  the 
act  that  was  done;  there  is  no  dispute  about  that.  Not  about 


330  INTERNATIONAL  SUBJECTS 

the  obligation  to  make  amends;  that  was  done.  Not 
about  the  obligation  to  apologize;  the  apologies  were  made. 
But  about  the  form  of  further  amends,  how  a  salute  should 
be  fired,  what  were  the  proper  and  customary  obligatory 
incidents  in  the  way  of  returning  such  a  salute,  and  the 
number  of  guns  which  should  be  fired.  It  is  upon  that  dis- 
pute—  upon  a  dispute  between  these  two  Governments 
about  the  number  of  guns  that  are  to  be  fired  and  about 
what  the  proper  custom  is  as  to  returning  the  salute  when 
it  is  fired  —  it  is  upon  that  dispute  that  this  justification  is 
made  to  rest  in  the  resolution  passed  by  the  other  House 
and  in  the  resolution  reported  by  the  Committee  on  Foreign 
Relations  of  the  Senate. 

Mr.  President,  I  feel  boimd  to  say  that  while  I  would  never 
for  a  moment  fail  so  far  as  in  me  lay  in  preserving  the  dignity 
and  honor  of  the  flag  of  the  United  States,  the  dispute  to 
which  this  incident  has  come  seems  to  be  painfuUy  inade- 
quate to  the  results  which  are  to  be  drawn  from  it.  If  that 
is  all  —  if  there  is  nothing  else  except  a  question  of  the 
number  of  guns  and  the  form  and  manner  of  salute  —  which 
stands  between  the  hundred  million  people  of  the  United 
States  and  this  poor,  harried,  and  distressed  people,  it  seems 
to  me  that  the  occasion  is  painfully  inadequate  to  the  results 
that  are  to  follow. 

Is  that  all  ?  We  learn  tonight  that  Vera  Cruz  has  fallen, 
that  four  American  marines  lie  dead  in  that  city,  and  that 
twenty-one  lie  suffering  from  wounds.  Is  there  nothing  but 
this  dispute  about  the  number  of  guns  and  the  form  and  cere- 
mony of  a  salute  to  justify  the  sacrifice  of  those  American  lives  ? 

O  Mr.  President,  deeply  and  sincerely  as  the  President  of 
the  United  States  desires  to  limit  the  scope  of  his  action, 
deeply  and  sincerely  as  he  desires  the  maintenance  of  peace, 
all  history  and  human  experience  teach  us  that  once  lighted, 
the  fires  of  war  cannot  be  quenched  at  will. 


THE  MEXICAN  RESOLUTION  331 

It  is  intervention,  technically,  but  it  is  war  in  its  essence 
that  we  are  to  vote  to  justify  tonight.  How  long  it  will 
continue,  what  its  results  and  its  incidents  will  be,  no  man 
can  state.  Men  will  die,  men  dear  to  us  will  die,  because  of 
the  action  that  we  are  to  approve  tonight.  American  homes 
will  be  desolate;  American  women  will  mourn;  American 
children  will  go  through  life  fatherless,  because  of  the  action 
that  we  are  to  approve  tonight;  and  when  those  children, 
grown  to  manhood,  turn  back  the  page  to  learn  in  what 
cause  their  fathers  died,  are  they  to  find  that  it  was  about  a 
quarrel  as  to  the  number  of  guns  and  the  form  and  ceremony 
of  a  salute,  and  nothing  else  ? 

We  are  to  justify.  What  is  the  justification  ?  Is  there  none 
but  that  ?  We,  the  representatives  of  the  great  peace-loving 
nation;  we,  the  representatives  of  the  great  democracy  that 
prides  itself  upon  demonstrating  to  the  world  that  democracy 
can  be  peaceful  and  just;  we  are  to  justify  these  acts  of  war; 
and  is  there  no  justification  that  we  can  lay  before  our  coun- 
trymen, before  the  world,  before  the  community  of  nations, 
before  the  judgment  seat  of  history,  except  our  dispute  about 
the  number  of  guns  and  the  form  and  method  of  a  salute  ? 
O  Mr.  President,  how  inadequate!  How  can  we  justify  our- 
selves if  we  have  no  justification  but  that  ? 

But,  sir,  that  is  not  all.  If  it  had  been  all,  the  President 
would  not  have  come  to  the  Congress  yesterday;  if  it  had 
been  all,  we  would  not  be  discussing  the  subject  here  tonight. 
Back  of  the  incident,  back  of  the  special  circumstance  which 
forms  the  whole  of  the  resolution  reported  by  the  committee, 
there  is  a  great  array  of  facts,  a  long,  dreadful  history.  Mr. 
President,  if  there  were  nothing  else  but  the  incident  referred 
to  in  the  resolution,  would  the  American  Government  have 
thought  for  a  moment  of  treating  this  poor,  weak  country  in 
this  peremptory  way  ?  Such  things  have  happened  hundreds 
of  times  before.    Ignorant  subalterns  have  many  and  many 


332  INTERNATIONAL  SUBJECTS 

a  time  transgressed  the  limits  of  propriety,  mistaken  their 
duty  and  their  powers,  and  have  done  acts  which  were  insults 
to  great  governments.  It  has  often  occurred  in  the  history 
of  the  United  States.  What  have  we  done.'*  what  would  we 
do  today  if  a  subordinate  oflBcer  in  a  port  of  England  or 
France  or  Germany  or  Italy  were  to  mistake  his  duty,  make 
an  arrest  of  American  sailors,  as  American  sailors  have  been 
arrested  before,  and  the  act  were  disavowed  by  the  Govern- 
ment he  served  and  an  apology  were  made,  and  regret  was 
expressed,  and  an  intention  to  punish  him  was  expressed  — 
what  would  we  do  about  the  form  and  method  of  further 
amends  ?    Sir,  in  the  first  place,  we  would  settle  the  facts. 

We  are  now  engaged  in  signing  a  series  of  treaties  designed 
to  take  in  all  the  world,  and  already  a  very  large  number  of 
nations  of  the  world  have  signed,  under  which  we  agree  with 
them  that  if  there  be  any  dispute  about  any  question  of  fact 
a  commission  shall  investigate  and  report,  and  no  action  shall 
be  taken  for  one  year,  to  allow  the  report  to  be  made.  We 
find  here  that,  while  our  admiral  reported  that  the  American 
flag  was  flying  on  the  boat,  the  Mexican  officer  reported  to 
General  Huerta  that  no  flag  was  flying.  I  believe  our  admiral 
but  can  we  think  it  strange  that  General  Huerta  believed  his 
officer?  If  there  were  nothing  else — if  this  were  all — should 
not  that  question  of  fact  be  determined  by  peaceful  means? 

The  question  of  the  proper,  appropriate,  and  customary 
form  and  method  of  a  salute  is  a  matter  of  precedent  and  the 
usage  of  nations.  It  is  the  universal  custom  of  civilized  na- 
tions to  present  in  diplomatic  communications  the  prece- 
dents, the  authorities  showing  that  the  custom  contended 
for  by  one  country  is  the  true  custom  and  that  the  other 
country  is  mistaken.  In  the  case  that  I  suppose,  of  such  an 
incident  occurring  in  a  port  of  France  or  Germany  or  Eng- 
land or  Italy,  sir,  we  would  have  presented  our  facts,  investi- 
gated the  facts,  made  certain  and  clear  the  facts,  presented 


THE  MEXICAN  RESOLUTION  333 

the  authorities  upon  precedent  and  custom,  and  by  peaceable 
and  friendly  communication  would  have  reached  a  result. 

If  that  were  all,  that  is  what  we  would  do.  If  this  be  all, 
is  this  nation  of  a  hundred  millions,  the  richest  upon  earth, 
with  its  mighty  power,  to  treat  poor,  weak,  bankrupt,  down- 
trodden, distressed,  despairing  Mexico  in  any  less  kindly  and 
just  a  way  ?  If  this  be  all,  how  can  we,  in  the  arrogance  of 
power,  justify  treating  this  weak  neighbor  with  a  peremptory 
harshness  that  we  would  not  think  of  using  toward  a  powerful 
nation  ? 

Mr.  President,  what  I  have  said  is  what  the  good  people  of 
our  country  and  of  the  world  will  think,  if  we  finish  our  work 
tonight  by  the  adoption  of  the  resolution  reported  by  the 
committee.  There  is  no  justification  for  us  there.  No;  by 
the  expression  of  one  thing,  the  dispute  about  the  salute,  we 
commit  ourselves  to  the  exclusion  of  all  other  justifications. 
We  commit  ourselves  to  a  condemnation  that  will  weigh 
heavily  upon  the  heart  of  many  a  good  American  who  loves 
his  country  and  her  honor,  and  which  as  time  goes  on,  and 
the  judgment  of  the  world  and  of  the  future  is  made  up,  will 
grow  darker  and  darker. 

But,  Mr.  President,  it  is  not  all  —  it  is  not  all.  There  is 
matter  of  justification;  and  the  Senator  from  Massachusetts 
[Mr.  Lodge]  has  sought  to  lay  it  before  the  people  of  America 
and  of  Mexico  and  of  the  community  of  nations  by  the  recital 
in  the  substitute  resolution  which  he  offers.  What  is  it  ?  It 
is  that  lying  behind  the  insult  to  our  flag  by  this  poor, 
ignorant  subordinate  are  years  of  violence  and  anarchy  in 
Mexico.  Lying  behind  it  are  hundreds  of  American  fives 
sacrificed,  miUions  of  American  property  destroyed,  and 
thousands  of  Americans  reduced  to  poverty  today  through 
the  destruction  of  their  property.  Lying  behind  it  is  a  condi- 
tion of  anarchy  in  Mexico  which  makes  it  impossible  to 
secure,  by  diplomatic  means,  protection  for  American  life 


334  INTERNATIONAL  SUBJECTS 

and  property  in  that  country.  Lying  behind  it  is  a  condition 
of  affairs  in  Mexico  which  makes  that  country  incapable  of 
performing  its  international  obKgations. 

The  insult  to  the  flag  is  but  a  part  —  the  culmination,  if 
you  please  —  of  a  long  series  of  violations  of  American  rights, 
a  long  series  of  violations  of  those  rights  which  it  is  the  duty 
of  our  country  to  protect  —  violations  not  for  the  most  part 
of  government,  but  made  possible  by  the  weakness  of  govern- 
ment, because  through  that  country  range  bands  of  free- 
booters and  chieftains  like  the  captains  of  free  companies, 
without  control  or  responsibility.  Lying  back  of  this  incident 
is  a  condition  of  things  in  Mexico  which  absolutely  prevents 
the  protection  of  American  life  and  property  except  through 
respect  for  the  American  flag,  the  American  uniform,  the 
American  Government. 

It  is  that  which  gives  significance  to  the  demand  that 
pubHc  respect  shall  be  paid  to  the  flag  of  the  United  States. 
There  is  our  justification.  It  is  a  justification  lying  not  in 
Victoriano  Huerta  or  in  his  conduct  alone,  but  in  the  uni- 
versal condition  of  affairs  in  Mexico.  The  real  object  to  be 
attained  by  the  course  we  are  asked  to  approve  is  not  the 
gratification  of  personal  pride;  it  is  not  the  satisfaction  of  an 
admiral  or  a  Government.  It  is  the  preservation  of  the  power 
of  the  United  States  to  protect  its  citizens  under  those 
conditions. 

If  we  omit  from  the  resolution  that  shall  be  passed  tonight 
all  reference  to  the  matters  that  are  enumerated  in  the  sub- 
stitute, we  omit  the  real  object  which  forms  the  only  justifi- 
cation for  action.  Without  that,  sir,  upon  the  showing  of  the 
resolution  reported  by  the  committee  we  would  be  everlast- 
ingly wrong.  With  the  facts  that  are  enumerated  in  the 
substitute  the  action  of  the  United  States  will  rest  with 
becoming  sense  of  proportion  and  national  dignity  upon 
adequate  foundation  and  cause. 


THE  MEXICAN  RESOLUTION  335 

The  Senator  from  Indiana  [Mr.  Shively]  has  observed,  in 
effect,  that  the  substitute  resolution  thunders  in  the  index. 
Ah,  Mr.  President,  the  capture  of  Vera  Cruz,  the  death  of 
American  citizens,  the  wounds  and  sufferings  of  men  who  He 
there  tonight  demand  something  more  than  formal  indict- 
ment. The  recitals  of  the  substitute  resolution  are  weak  in 
the  face  of  death  and  wounds  and  sufferings  of  Americans  in 
Vera  Cruz.  No  less  than  the  substitute  resolution  avers  can 
justify  us. 

The  conclusion  of  the  substitute  resolution,  sir,  is  the  same 
as  that  of  the  other.  It  justifies  the  President  in  the  same 
course  of  conduct  which  the  committee  resolution  justifies, 
but  it  gives  grounds.  It  gives  substantial  grounds.  It  gives 
grounds  creditable  to  the  United  States  and  adequate  for  the 
proposed  action,  instead  of  leaving  this  momentous  move- 
ment of  a  great  naval  and  military  power  to  rest  upon  no 
justification  but  a  dispute  with  a  weak  and  helpless  adver- 
sary about  the  number  of  guns  and  the  proper  ceremonies 
of  a  salute. 


THE  SHIP  PURCHASE  BILL 

On  January  4,  1915,  the  Senate,  as  in  Committee  of  the  Whole,  had  under  con- 
sideration the  bill  (S.  6856)  to  authorize  the  United  States,  acting  through  a  ship- 
ping board,  to  subscribe  to  the  capital  stock  of  a  corporation  to  be  organized  under 
the  laws  of  the  United  States  or  of  a  State  thereof  or  of  the  District  of  Columbia,  to 
purchase,  construct,  equip,  maintain,  and  operate  merchant  vessels  in  the  foreign 
trade  of  the  United  States,  and  for  other  purposes. 

The  President  pro  tempore.  The  bill  is  in  Committee  of  the  Whole 
and  open  to  amendment.  Unless  there  is  objection,  the  committee  amend- 
ments will  be  first  considered.     The  Chair  hears  no  objection. 

Mr.  Root  said : 

I  DO  not  wish  at  this  time  to  enter  upon  a  discussion  of 
the  merits  of  this  bill,  but  I  do  wish  to  say  a  very  few 
words  regarding  the  discussion  of  the  bill. 

I  think  it  is  a  bill  of  vast  importance.  I  have  known  of  no 
measure  laid  before  the  Senate  in  the  past  half  dozen  years 
which  seemed  to  me  weighted  with  such  consequence  as  is 
this  bill. 

There  are  three  major  lines  of  consideration,  upon  each  one 
of  which  we  must  regard  this  bill  as  of  very  great  consequence 
to  the  people  of  the  country.  The  first  and  least  is  that  it  pro- 
poses to  embark  the  Government  of  the  United  States  upon  a 
very  large  expense  in  a  business  venture  of  a  kind  in  which 
the  private  enterprise  of  the  United  States  has  uniformly 
met  with  loss  rather  than  profit,  and  it  proposes  to  embark 
the  Government  in  such  a  venture  practically  without  limit 
imposed  by  the  Congress  of  the  United  States. 

I  say  that  is  the  least  of  the  reasons  why  this  bill  must  be 
regarded  as  of  great  importance.  A  second  and  more  import- 
ant reason  is  that  it  proposes  to  put  the  Government  of  the 
United  States  into  the  foreign  trade  at  a  time  when  that  trade 
necessarily  involves  frequent,  almost  constant,  questions  of 
critical  importance,  of  great  delicacy  and  difficulty,  arising 


338  INTERNATIONAL  SUBJECTS 

under  the  law  of  nations  regarding  neutral  and  belligerent 
rights.  It  prof)oses  to  put  the  Government  of  the  United 
States  in  a  position  where  her  good  faith  will  be  questioned, 
where  her  violation  of  the  law  of  nations  will  be  asserted,  if 
any  situations  arise  such  as  have  been  detailed  to  us  within  a 
few  days  by  the  Senator  from  Montana  [Mr.  Walsh].  It 
proposes  to  create  a  condition  where  it  will  be  no  mere  ques- 
tion of  an  individual  citizen  of  the  United  States  undertaking 
and  succeeding  or  failing  in  carrying  contraband  to  a  bellig- 
erent, but  where  the  same  state  of  facts  will  raise  the  ques- 
tion of  the  United  States  violating  its  neutrality  and  taking 
sides  with  one  belligerent  or  another. 

That  is  the  second  reason.  The  third  is  that  this  bill  pro- 
poses a  reversal  of  the  policy  which  has  been  followed  by  this 
Government  from  the  beginning.  It  proposes  to  embark  the 
Government  of  the  United  States  in  a  business  far  more  ex- 
treme than  would  be  the  ownership  of  railroads,  far  more 
extreme  as  an  exercise  of  governmental  authority  than 
would  be  the  ownership  of  telegraph  and  telephone  lines.  It 
proposes  to  put  the  Government  of  the  United  States  in  a 
position  where  it  will  step  in  and  remedy  the  defects,  the 
shortcomings,  the  failures  of  individual  enterprise  by  raising 
money  by  taxation  from  all  the  people  in  order  to  carry  on 
the  business  that  individual  enterprise  has  not  carried  on; 
and  that,  sir,  means  a  complete  reversal  of  the  policy  of  the 
United  States.  It  means  a  new  departure  on  a  line  of  Gov- 
ernment action  more  important,  more  fateful  in  its  results 
than  any  act  which  has  ever  been  passed  by  this  Congress 
since  I,  since  you,  Mr.  President  became  a  member  of  this 
body.  It  means  a  repudiation  more  signal  than  has  ever  yet 
been  made  of  the  principles  of  the  great  leader  of  the  party 
which  "  has  the  votes  "  to  put  this  bill  through. 

Sir,  there  has  been  no  discussion  here  since  I  have  been  in 
this  body  so  imperative  in  its  demands  upon  the  members  of 


THE  SHIP  PURCHASE  BD^L  339 

the  Senate  as  the  discussion  of  this  bill.  There  has  been  no 
measure  going  so  deep  to  the  basis  of  our  institutions  as  this 
bill.  It  comes  here,  sir,  imder  circumstances  which  are  repug- 
nant. There  was  no  hearing  before  the  committee  of  the 
House  on  such  a  measure  as  we  have  before  us.  There  was 
no  hearing  before  the  committee  of  the  Senate.  The  demand 
for  a  hearing  was  refused,  and  the  bill  was  reported  speedily, 
peremptorily,  with  but  slight  opportunity  for  discussion; 
and  now,  sir,  the  Senator  from  Missouri,  in  advance,  with 
some  show  of  feeling,  which  I  know  was  evanescent  and 
which,  I  trust,  does  not  even  now  continue,  has  stigmatized 
all  discussion  of  this  bill  on  the  part  of  the  minority  as  — 
what  were  the  words  ?  —  "  improper  and  unjustifiable.'* 

The  Senator  from  Florida,  with  that  kindliness  and  fairness 
which  always  characterize  him,  has  told  us  that  there  was  no 
disposition  to  interfere  with  the  debate  on  this  bill,  but  the 
Senator  from  Missouri  in  advance  gives  notice  to  the  country 
that  the  debate  on  this  bill  is  to  be  regarded  as  obstructive, 
improper,  and  unjustifiable.  I  protest  against  any  such  spirit 
dominating  this  body,  whether  it  be  on  the  part  of  those  who 
have  the  votes  or  not.  May  the  time  be  far  distant  when 
there  is  so  little  spirit  of  independence,  so  little  courage,  so 
little  loyalty  to  the  duty  of  a  minority  in  this  body  that  such 
a  notice  in  advance  is  accepted  without  just  resentment. 

Mr.  President,  the  discussion  of  measures  in  this  body  does 
not  consist  alone  in  the  making  of  speeches.  We  discuss 
measures  with  but  very  few  Senators  here.  There  are  not 
twenty  in  the  room  at  this  moment.  I  counted  them  a  few 
minutes  ago,  and  there  were  fourteen.  What,  then,  is  the 
use  of  discussion  ?  The  use  is  this,  that  every  speech  is  going 
to  the  country,  that  every  hour  passed  is  calling  the  attention 
of  the  country  to  the  measure.  The  people  of  the  United 
States  begin  to  consider,  begin  to  read,  begin  to  discuss,  and 
gradually  week  by  week  they  form  their  opinions,  and  their 


340  INTERNATIONAL  SUBJECTS 

opinions  find  their  way  back  here.  The  process  of  discussion 
results  ultimately  in  the  reaching  of  conclusions  which  are 
confonnable  to  the  will  and  judgment  of  the  people  of  the 
United  States.  That,  sir,  is  why  the  long,  patient,  and  some- 
times tedious  discussion  of  questions  in  the  Senate  of  the 
United  States  is  of  vast  utihty,  although  we  would  suppose 
that  it  was  useless  from  counting  the  men  who  are  listening 
to  the  speeches  which  are  made. 

Now,  Mr.  President,  this  bill,  fraught  with  such  great 
consequences,  must  have  and  shall  have  the  kind  of  discus- 
sion which  brings  these  grave  and  serious  questions  before 
the  people  of  the  United  States  and  which  enables  them  to 
form  their  judgments  upon  the  subjects  which  are  involved. 


SECOND  SPEECH  ON  THE  SHIP 
PURCHASE  BILL 

'  January  25,  1915,  the  Senate  having  been  in  continuous  session,  with  recesses, 
under  the  fiction  of  the  legislative  day  of  January  15,  Mr.  Root  spoke  again  on  the 
Ship  Purchase  Bill,  addressing  himself  particularly  to  the  pending  amendment  of 
Senator  Henry  Cabot  Lodge,  of  Massachusetts,  which  was  as  follows: 

Provided,  That  no  vessels  shall  be  pm-chased  under  this  act  which  are  the 
property,  in  whole  or  in  part,  or  which  are  in  any  manner  controlled  or  sub- 
sidized by  any  of  the  nations  now  at  war,  nor  shall  any  vessels  be  purchased 
imder  this  act  which  are  the  property  of  any  of  the  subjects  or  citizens  of  said 
belligerent  nations. 
Mr.  Root  spoke  a  third  time  on  this  bill  on  February  9, 1915,  addressing  himself 
to  the  national  aspects  of  the  proposed  legislation.    The  Sixty-third   Congress 
adjoiuned  sine  die  on  March  4,  1915,  without  enacting  this  legislation. 

I  WISH  to  address  myself  this  morning  to  the  amendment 
to  the  pending  ship  purchase  bill  offered  by  the  Senator 
from  Massachusetts  [Mr.  Lodge].  I  may  find  it  neces- 
sary hereafter  to  speak  upon  another  important  phase  of 
the  proposed  legislation,  but  at  present  I  speak  upon  that 
alone. 

I  wish  at  the  outset  to  say  a  few  words  regarding  the  discus- 
sion of  the  measure.  I  hope  I  am  not  warped  or  carried  away 
by  feeling  or  by  any  partisan  considerations,  but  it  does  not 
seem  to  me  that  this  bill  to  put  the  Government  of  the  United 
States  into  the  business  of  foreign  shipping  is  receiving  the 
kind  of  discussion  which  a  measure  of  great  importance  and 
novelty  ought  to  have.  It  is  a  very  important  measure.  It  is 
important  not  merely  because  it  involves  the  expenditure  of  a 
vast  sum  of  money  at  a  time  when  we  have  been  forced  to 
make  up  a  deficit  in  our  revenues  by  imposing  an  extraordi- 
nary tax  which  we  call  the  war-revenue  tax,  but  it  is  impor- 
tant because  it  embarks  the  Government  of  the  United  States 
upon  a  new  departure,  based  upon  a  reversal  of  the  principles 

S4I 


342  INTERNATIONAL  SUBJECTS 

of  government  which  we  have  always  followed  up  to  this  time. 
No  such  change  of  principle  and  policy  was  in  the  contempla- 
tion of  the  people  of  the  United  States  when  the  present 
Administration  was  put  into  power  by  their  votes.  No  such 
reversal  of  principle  and  policy  was  ever  discussed  and  passed 
upon  by  the  people  of  the  United  States  in  any  election. 

Plainly  the  judgment  of  the  people  should  be  taken,  so  far 
as  it  is  possible  by  the  ordinary  methods  in  which  a  free, 
self-governing  people  proceed  with  the  conduct  of  their 
Government.  Plainly  if  there  be  any  strength  or  virtue  in 
our  representative  government,  such  a  new  departure  and 
reversal  of  principle  and  policy  should  have  the  fullest  pos- 
sible discussion  in  the  great  public  forum  of  the  Congress  of 
the  United  States.  Is  this  measure  receiving  that  ?  It 
seems  to  me,  sir,  that  it  is  not. 

The  bill  in  its  present  form  was  reported  on  the  sixth  of  Jan- 
uary. During  the  month  before,  in  December,  it  had  been 
introduced  by  the  Senator  from  Missouri  [Mr.  Stone]  and 
referred  to  the  Committee  on  Commerce.  It  was  reported  by 
that  committee  without  hearing  and  without  any  extended 
consideration  or  discussion  in  the  committee. 

The  bill  was  brought  before  the  Senate  for  consideration, 
if  I  am  not  mistaken  in  my  dates,  on  the  fourth  day  of  the 
present  month,  and  the  Senator  from  Florida  presented  in  a 
brief  and  not  exhaustive  or  extensive  manner  the  report  in 
favor  of  the  bill.  Upon  that  day  notice  was  given  that  dis- 
cussion of  the  bill  by  the  minority  in  the  Senate  would  be  re- 
garded as  improper  and  obstructive.  Those  are  substantially 
the  words  that  were  used  by  the  senior  Senator  from  Missouri 
[Mr.  Stone].  Notice  was  given  which  stigmatized  all  discus- 
sion of  the  bill  by  the  minority  as  obstructive  and  improper. 

Mr.  Fletcher.    May  I  interrupt  the  Senator  ?  ' 

The  Vice-President.  Does  the  Senator  from  New  York 
yield  to  the  Senator  from  Florida  ? 


THE  SHIP  PURCHASE  BHJ.  343 

Mr.  Root.    Certainly. 

Mr.  Fletcher.    May  I  inquire  who  gave  that  notice  ? 

Mr.  Root.  The  Senator  from  Missouri  [Mr.  Stone]  gave 
that  notice. 

Mr.  Fletcher.  I  certainly  did  not  myself,  because  I 
stated  postively  that  we  would  afford  ample  opportimity  for 
full  discussion. 

Mr.  Root.  The  Senator  from  Missomi,  who  introduced 
the  bill,  gave  the  notice,  and  he  accompanied  it  by  the  state- 
ment that  they  had  the  votes  to  pass  the  bill.  In  advance 
of  any  discussion,  in  advance  of  any  consideration,  the 
notice  was  given  that  the  majority  in  the  Senate  had  the 
votes  to  pass  the  bill. 

Mr.  Stone.  Mr.  President,  I  was  looking  for  the  record  of 
exactly  what  occmred.  I  did  look  that  up  when  the  Senator 
from  New  York  made  a  statement  somewhat  similar  to  the 
one  which  he  repeats  this  morning,  and  I  thought  later  to 
have  the  exact  facts  shown  from  the  record  of  what  was  said 
repeated  here.  I  am  not  able  at  this  moment  to  turn  to  that 
record,  not  recalling  the  exact  time  when  the  colloquies 
occurred;  but  if  the  Senator  will  permit  me  a  few  moments, 
as  soon  as  I  can  look  it  up  I  will  be  very  glad  to  have  the 
exact  facts  and  everything  that  was  said  in  consecutive  order 
stated.     Now,  Mr.  President  — 

Mr.  Root.  Mr.  President,  it  is  not  my  purpose  to  yield  the 
floor. 

Mr.  Stone.   I  am  not  asking  the  Senator  to  yield  the  floor. 

The  Vice-President.  The  Chair  would  not  rule  that  the 
Senator  from  New  York  had  yielded  the  floor. 

Mr.  Root.    I  say  that  because  it  is  commonly  reported  — 

Mr.  Stone.    But  the  statement  — 

Mr.  Root.  That  it  will  be  regarded  during  the  progress  of 
this  debate  as  a  yielding  of  the  floor  by  the  Senator  holding  it 
if  he  permits  any  interruption  for  the  purpose  of  any  speech 


344  INTERNATIONAL  SUBJECTS 

or  business  whatever  —  that  is  the  understanding  —  except 
the  asking  of  a  question. 

Mr.  Stone.  Very  well;  I  will  wait  until  the  Senator  from 
New  York  concludes  his  address,  Mr.  President,  and  then  I 
will  produce  the  Record,  for  I  am  sure  the  Senator  from  New 
York  does  not  wish  to  make  a  misleading  statement,  although 
a  mistaken  one. 

Mr.  Root.  Mr.  President,  I  do  not  wish  to  do  the  Senator 
from  Missouri  any  injustice.  Like  him,  I  have  not  examined 
to  get  the  precise  words  which  were  used.  I  am  stating  the 
effect  of  what  he  said  upon  my  mind,  the  effect  upon  the  mind 
of  all  the  Senators  about  me,  and  upon  the  minds  of  all  the 
Senators  with  whom  I  have  since  conversed.  The  effect  was 
that  the  Senator  from  Missouri  intended  on  the  fourth  of 
January  to  give  notice  that  discussion  of  this  ship  purchase 
bill  on  this  side  of  the  aisle  would  be  regarded  as  improper 
and  obstructive.  He  accompanied  that  by  the  statement: 
"  We  have  the  votes  to  put  the  bill  through,  unless  it  is  pre- 
vented from  coming  to  a  vote  by  improper  or  obstructive 
tactics."    That  was  but  the  beginning. 

Two  days  after  this  notice  was  given  a  substitute  bill  was 
introduced  striking  out  everything  that  had  been  in  the 
measure  on  the  fourth  of  January  and  substituting  an  en- 
tirely new  measure,  with  much  that  was  in  the  old,  but  a  new 
measure  from  beginning  to  end.  Since  that  time  we  have  not 
been  discussing  this  bill;  there  has  been  no  discussion  of  this 
bill  in  this  representative  body.  Some  of  us  who  have  been 
opposed  to  the  bill  have  been  making  speeches  about  it,  but 
the  bill  has  not  been  discussed. 

I  have  sat  here  and  counted  with  wonder  from  time  to  time 
the  numbers  of  the  majority  who  have  been  present  while 
men  eminent  for  learning  and  experience  and  ability  and 
patriotism  have  been  attempting  to  discuss  the  bill.  I  have 
seen  here  four  Democratic  Senators  present,  three  present. 


THE  SHIP  PURCHASE  BILL  345 

one  present.  I  marked  the  presence  of  but  one  Democratic 
Senator  in  this  Chamber  by  saying  to  the  Senator  from  New 
Hampshire  [Mr.  Gallinger]:  "If  some  one  would  call  Mr. 
Fletcher  out  of  the  Chamber,  we  might  move  to  adjourn.'* 
I  say  that  has  been  the  rule  —  one,  three,  four,  five,  half  a 
dozen  Senators  present  while  the  Senator  from  Ohio  [Mr. 
Burton],  the  senior  Senator  from  Iowa  [Mr.  Cummins],  the 
junior  Senator  from  Massachusetts  [Mr.  Weeks],  and  the 
senior  Senator  from  Massachusetts  [Mr.  Lodge],  have  been 
trying  to  perform  their  duty  of  discussing  this  great  and 
novel  measure  in  the  Senate  of  the  United  States.  The  men 
who  announced  at  the  beginning  that  they  had  the  votes  to 
carry  the  bill  have  been  absent. 

The  Senator  from  Mississippi  [Mr.  WiQiams],  with  that 
genial  humor  which  so  often  brightens  the  closing  hours  of  our 
legislative  days,  had  —  I  will  not  say  the  effrontery,  but  I 
will  say  the  disrespect,  to  tell  the  Senate  that  the  speeches 
made  by  these  gentlemen  were  not  worth  listening  to.  He 
said  what  was  true,  that  he  was  not  obKged  to  listen  to  the 
Senator  from  Ohio  or  to  the  Senator  from  Massachusetts  or 
to  the  Senator  from  Iowa  —  that  is  true  —  but  when  having 
been  absent,  not  having  heard  one  word,  he  comes  into  the 
Senate  and  says  they  were  not  worth  listening  to,  that  they 
were  long  speeches  with  nothing  in  them,  he  denies  the  effi- 
cacy of  the  American  system  of  representative  government; 
he  discredits  the  Senate  of  the  United  States;  for,  sirs,  there 
is  not  now  and  never  has  been  in  our  history  a  group  of  men 
whose  study  and  thought  and  expression  upon  great  pubUc 
questions  have  been  of  greater  value  to  the  people  of  the 
United  States  than  the  Senators  whom  I  have  pointed  out 
and  who,  the  Senator  from  Mississippi  says,  are  not  worth 
Kstening  to. 

Why  is  it,  Mr.  President,  that  this  course  has  been  fol- 
lowed ?   Not  because  the  Senators  upon  the  other  side  really 


346  INTERNATIONAL  SUBJECTS 

believe  that  the  contributions  these  Senators  have  made 
to  the  discussion  of  this  bill  are  not  worth  listening  to, 
but  for  a  very  different  reason.  It  has  not  been  the  ordi- 
nary fatigue  or  desire  to  attend  to  other  business;  it  has 
been  for  a  specific  purpose.  Before  I  state  that  purpose, 
let  me  add  that  not  only  had  there  been  an  announce- 
ment at  the  beginning  that  you  had  the  votes  to  pass  the 
bill  and,  subsequent  to  that,  abstention  from  the  meetings 
of  the  Senate  during  our  attempts  at  discussion;  not  only 
has  there  been  the  open  and  public  declaration  that  what 
the  ablest  men  in  the  minority  had  to  say  on  this  new  sub- 
ject is  not  worth  Hstening  to,  but  the  rules  of  the  Senate 
have  been  so  used,  have  been  used  in  such  an  unusual 
and  extraordinary  way  as  to  make  any  attempt  at  discus- 
sion upon  this  side  of  the  Chamber  most  burdensome  and 
difficult. 

I  am  now  speaking  on  the  twenty-fifth  day  of  January,  but 
we  are  proceeding  according  to  the  Calendar  of  Business, 
from  which  I  read,  and  according  to  the  order  of  the  majority 
of  the  Senate,  upon  the  legislative  day  of  Friday,  January  15, 
1915.    Why  is  that  fiction  employed  ? 

Mr.  Hughes.    Mr.  President  — 

The  Vice-President.  Does  the  Senator  from  New  York 
yield  to  the  Senator  from  New  Jersey  ? 

Mr.  Root.  I  yield  so  far  as  I  may  without  losing  the 
floor. 

Mr.  Hughes.  I  merely  desire  to  ask  the  Senator  if  that 
situation  does  not  exist  by  virtue  of  imanimous  consent 
entered  into  in  this  body  ? 

Mr.  Root.  Mr.  President,  it  does  not  exist  by  unanimous 
consent. 

Mr.  Hughes.    Well,  practically  by  imanimous  consent. 

Mr.  Root.  It  does  not  exist  practically  by  unanimous 
consent.     It  exists  against  my  open  and  vigorous  objec- 


THE  SHIP  PURCHASE  BH^L  347 

tion,  and  it  exists  because  of  the  voting  down  of  a  motion 
to  adjourn  made  by  the  junior  Senator  from  Pennsylvania 
[Mr.  Oliver]  and  the  carrying  by  the  majority  of  a  motion 
for  a  recess  until  eleven  o'clock,  instead  of  the  ordinary 
adjournment. 

Mr.  President,  why  is  it  that  for  ten  days  we  have  been 
conducting  our  business  under  a  fiction,  under  a  false  pre- 
tense —  the  pretense  that  we  are  in  the  day  of  January  15  ? 
Why,  sir,  it  is  in  order  that  we  may  have  from  eleven  o'clock 
in  the  morning  until  six  or  seven  o'clock  in  the  evening,  dur- 
ing which  no  business  can  be  transacted,  except  the  making  of 
speeches  on  this  bill;  that  is,  eight  hours  of  continuous  speak- 
ing on  this  bill  with  no  other  business.  This  fiction  of  a 
continuous  legislative  day  cuts  out  the  morning  hour;  it  cuts 
out  the  order  of  business  imder  which  petitions  and  memorials 
may  be  presented,  under  which  bills  may  be  introduced, 
under  which  reports  of  committees  may  be  submitted;  all 
business  of  the  Senate  is  pushed  aside  by  this  fiction  in 
order  that  the  opponents  of  this  bill  may  be  turned  into  the 
Chamber  under  the  necessity  of  speaking  continuously  eight 
hours  every  day,  and  with  the  threat  looming  up  before  us  of 
night  sessions  also,  and  speaking  to  empty  benches  on  the 
other  side. 

Mr.  President,  this  bill  is  being  put  through  by  the  pressure 
of  physical  weakness.  It  is  being  put  through  by  means  of 
making  it  as  exhausting  as  possible  for  the  opponents  of  the 
bill  to  discuss  it. 

Sir,  there  are  two  objects  of  discussion  in  a  representative 
body.  One  is  to  conviace  one's  colleagues,  to  produce  an 
efiFect  upon  the  minds  of  one's  colleagues.  That  is  the  de- 
liberation, the  consideration  of  the  representative  body. 
That,  sir,  does  not  exist  in  regard  to  this  bill.  No  one  can 
deny  it.  There  have  been  discussions  behind  closed  doors, 
we  are  told  by  the  newspapers.    There  have  been  discussions 


348  INTERNATIONAL  SUBJECTS 

in  the  Democratic  caucus,  amendments  offered  and  adopted, 
amendments  offered  and  rejected  behind  closed  doors,  but  no 
discussion  of  this  great  measure  in  this  representative  body. 

I  am  not  one,  sir,  who  flouts  at  caucuses.  I  think  there 
may  well  come  a  time  in  the  course  of  the  progress  of  legisla- 
tion when  a  party  shall  undertake  to  act  as  a  unit;  but,  sir,  it 
ought  to  be  after  discussion,  and  not  before  discussion  or  as  a 
substitute  for  discussion.  You  are  substituting  secret  dis- 
cussion in  your  caucus  to  the  exclusion  of  that  discussion  and 
consideration  of  this  great  measure  which  the  Constitution, 
the  spirit  of  our  free  American  Government,  demands. 

There  is  another  object  of  discussion,  sir,  and  that  is  an 
object  which  reminds  me  of  the  old  phrase,  so  familiar  to 
some  of  us,  "  leading  in  prayer."  When  we  properly  discuss 
a  measure  of  pubUc  importance  we  not  only  address  our- 
selves to  each  other,  but  we  are  leading,  stimulating,  inciting 
the  thought  and  discussion  of  the  people  of  the  whole  coun- 
try; and  that,  sir,  is  after  all  the  great,  the  all-important,  the 
indispensable  function  of  a  public  legislative  body.  Once  we 
begin  in  the  Senate  to  discuss  a  new  measure,  as  little  atten- 
tion as  may  seem  to  be  paid  to  specific  utterances,  some  get 
into  the  press;  in  all  the  great  newspaper  offices  there  are 
men  whose  business  it  is  to  read  the  Record;  public  discus- 
sion begins;  pertinent  conversation  among  citizens  begins; 
in  all  the  places  where  American  voters  meet  they  begin  to 
discuss,  and  gradually,  through  the  press  and  through  letters, 
telegrams,  and  conversations  comes  back  to  the  body  a  sense 
of  public  judgment. 

Mr.  President,  when  has  there  been  proposed  to  the  Ameri- 
can Congress  a  measure  which  required  that  kind  of  discus- 
sion more  plainly  than  this  novel  and  important  measure  ? 
Yet  it  is  denied  by  the  continued  pressure  of  a  fictitious 
legislative  day,  and  long  hours,  and  abstention  from  discus- 
sion upon  the  side  of  the  majority,  pressing  on  the  progress 


THE  SHIP  PURCHASE  BH^L  349 

of  this  measure  for  the  purpose  of  putting  it  through  by  brute 
force  and  weight  of  votes  before  the  people  of  the  United 
States  can  think  about  it  and  discuss  it  and  express  their 
opinion  upon  it. 

Mr.  President,  the  fact  that  this  measure  cannot  have  that 
kind  of  discussion  and  be  passed  at  this  short  session  con- 
sistently with  doing  the  primary  work  of  the  session  upon  the 
appropriation  bills  shows  that  it  ought  not  to  pass  at  this 
short  session.  You  can  pass  it,  my  friends  upon  the  Demo- 
cratic side  of  this  Chamber.  You  can  pass  the  bill.  You 
have  it  in  your  power.  The  Senator  from  Missouri  was  right 
when  he  said:  "  We  have  the  votes,  and  will  pass  it."  You 
can  do  it  because  upon  this  side  of  the  Chamber  are  men  who 
have  grown  old  in  the  public  service,  and  whose  physical 
strength  makes  it  impossible  for  them  to  do  what  their  sense 
of  duty  would  dictate.  You  can  pass  it,  but  you  do  it  at  the 
fearful  risk  of  denying  to  the  people  of  the  United  States  that 
consideration  and  discussion  and  formation  and  expression  of 
judgment  to  which  they  are  entitled. 

Mr.  President,  important  as  this  bill  is,  I  am  not  sure  that 
the  subject  I  am  now  discussing  is  not  still  more  important. 
The  modification  of  constitutional  government  by  practice  is 
a  gradual  but  resistless  process.  We  are  all  familiar  with  the 
change  in  our  constitutional  system  which  practice  has  made 
in  regard  to  the  election  of  a  President.  The  electoral  college 
no  longer  is  at  liberty  to  speak  its  own  mind  or  to  act  upon 
the  dictates  of  its  own  judgment.  Gradual  progress  has 
nullified  the  constitutional  provision,  and  has  created  a  new 
system.  That  process  has  taken  place  in  many  a  land. 
When  Louis  XIV  declared  himself  to  be  the  State,  it  had 
become  the  sole  function  of  the  Parliament  of  Paris  to  register 
—  not  to  discuss,  but  to  register  his  decrees.  I  have  seen 
national  legislative  bodies  which  have  reached  that  point.  I 
have  seen  them,  have  been  present  in  them,  when  no  voice 


350  INTERNATIONAL  SUBJECTS 

was  clear  enough,  no  courage  high  enough,  to  break  away 
from  the  custom  which  accepted  and  registered  the  directions 
of  the  chief  executive.     It  was  the  result  of  a  gradual  process. 

Let  us  not  be  too  confident  that  we  are  proof  against  such  a 
process.  We  abandon  today  the  performance  of  our  func- 
tion of  so  discussing  this  measure  among  ourselves  that  there 
shall  be  real  deliberation,  real  consideration,  real  forming  of 
opinion  here,  of  discussing  it  so  that  the  people  of  the  coun- 
try shall  follow  us  in  discussing  it,  in  forming  and  expressing 
their  opinion,  and  we  have  taken  one  step  further  than  ever 
before  in  the  process  which  will  make  us  a  r^stering  body 
rather  than  a  legislative  body. 

I  do  not  mean  that  it  will  come  tomorrow.  I  do  not  mean 
that  other  bills  may  not  come,  on  which  there  will  be  dis- 
cussion; but  I  mean  that  we  are  taking  a  step  in  a  process 
which  is  fraught  with  danger  and  with  fatal  results  to  repre- 
sentative government.  We  can  jusfify  our  existence  as  a 
body  only  by  the  performance  of  our  duty. 

Oh,  sir,  the  liberties  of  a  free  people  depend  upon  the 
courage  and  persistency  of  a  minority.  They  depend  upon 
independence  of  thought  and  action  on  the  part  of  all  the 
members  of  a  legislative  body.  If  we  are  merely  to  register, 
if  we  are  to  refrain  from  discussion,  if  we  are  to  smother  our 
judgment,  we  are  contributing  our  part  toward  a  process 
more  fatal  to  our  country  than  any  legislation  we  can  devise, 
more  injurious  than  any  benefit  we  can  render  will  compen- 
sate for. 

Now,  Mr.  President,  let  me  turn  my  attention  to  the  bill 
itself,  and  what  it  does. 

It  is  an  emergency  measure.  It  puts  in  the  hands  of 
three  members  of  the  Cabinet  practically  $40,000,000,  with 
power  to  increase  the  amount  for  the  purpose  of  entering 
into  the  business  of  ocean  transportation  on  the  part  of  the 
Government  of  the  United  States. 


THE  SHIP  PURCHASE  BH^L  351 

I  looked  to  see  what  may  have  prompted  the  sponsors  of 

the  bill,  and  I  find  that  m  the  testimony  of  the  protagonist  in 

its  behalf,  the  Secretary  of  the  Treasury,  Mr.  McAdoo,  the 

emergency  character  of  the  bill  is  clearly  and  forcibly  stated. 

I  read  from  his  testimony  taken  on  September  1, 1914,  before 

the  House  committee,  the  hearing  of  the  Committee  on 

Merchant  Marine  and  Fisheries  on  House  Bill  18518.    He 

says: 

A  great  many  of  our  commodities  and  our  products  are  dependent  and 
have  been  dependent  for  outlet  upon  some  of  the  foreign  bottoms  which 
are  now  idle,  and  that,  in  turn,  has,  of  course,  had  an  injurious  reflex  action 
upon  our  commerce.  The  immediate  problem  confronting  us  is  to  provide 
additional  facilities  for  carrying  American  products  in  the  foreign  trade; 
and  in  order  to  do  that,  we  must  depend  upon  either  private  capital  to 
make  these  investments  in  ships  to  be  sailed  imder  our  flag  or  else  the 
Government  will  have,  as  an  emergency  measure,  to  come  fo  the  assistance 
of  the  country. 

He  says  also: 

Of  course  this  measiu-e  is  designed  to  be  an  emergency  measure.  It 
never  was  contemplated  that  this  should  be  a  permanent  operation  on  the 
part  of  the  Government.  Still  I  think  the  provision  for  the  disposition  of 
these  ships  is  ample  in  case  the  necessity  for  them  shall  have  disappeared. 
Therefore  the  bill  was  drawn  with  reference  to  the  immediate  emergency 
that  is  to  be  met. 

He  says  also: 

You  are  facing  a  situation  now  where  you  cannot  measure  economy 
against  the  interests  of  the  American  people,  and  you  must  assume  also, 
in  the  discussion  of  subsidy,  which  I  am  opposed  to  on  principle  anyway, 
you  must  assume  that  companies  are  available  to  take  advantage  of  any 
subsidy  that  would  be  granted.  They  are  not  available,  and  there  is 
no  telling  how  soon  they  could  be  organized.  It  is  only  by  the  Govern- 
ment dealing  with  this  question  in  double-fisted  fashion  that  relief  can  be 
given. 

There  was  something  said  about  South  American  trade, 
but  manifestly  that  is  not  an  emergency  and  not  any  part  of 
the  emergency,  for  every  one  agrees  that  there  is  more  ship- 
ping to  transact  the  South  American  business  than  there  is 


S52  INTERNATIONAL  SUBJECTS 

business  to  be  transacted  for  the  present,  and  there  is  no 
emergency  there. 

I  said  this  puts  a  large  amount  of  money  in  the  hands 
of  these  gentlemen.  They  are  at  liberty  to  subscribe  for 
$10,000,000  of  stock.  They  are  bound  to  subscribe  for 
fifty-one  per  cent  of  that.  They  are  to  offer  the  remainder 
to  public  subscription;  but  it  is  agreed  that  the  business  is 
to  be  conducted  at  a  certain  loss.  The  Secretary  of  the 
Treasury  stated  that  with  great  frankness  in  the  hearing; 
and  therefore  it  is  assumed  by  him  and  by  other  sponsors 
of  the  measure  that  there  will  be  practically  no  private  sub- 
scriptions for  stock.  It  is  quite  evident  that  no  one  would 
from  ordinary  and  proper  commercial  motives,  subscribe  at 
par  for  the  minority  stock  of  a  corporation  which  is  adver- 
tised beforehand  as  a  losing  venture. 

Therefore  the  Government  will  subscribe  for  all  the  stock 
under  the  terms  of  the  bill.  They  are  authorized  to  sell 
$30,000,000  of  Panama  bonds,  making  $40,000,000.  They 
are  authorized  to  increase  the  stock  indefinitely  with  the 
approval  of  the  President. 

The  newspapers  say  that  in  the  Democratic  caucus  an 
amendment  has  been  adopted  which  will  limit  that  increase 
to  $10,000,000  more,  and  I  will  without  dwelling  further  upon 
it  assume  that  to  be  the  limit,  making  $50,000,000.  They  are 
to  put  $50,000,000  into  a  losing  business,  the  loss  upon  which 
will  have  to  be  made  up  from  taxation. 

Of  course,  this  must  be  but  an  emergency  measure.  Of 
course,  it  is  only  as  an  emergency  measure  that  anyone  would 
propose  to  do  such  a  thing  at  a  time  when  we  have  had  to 
impose  an  extraordinary  war-revenue  tax  upon  the  people  of 
the  country  because  of  a  deficit  in  our  revenue.  Every  man 
who  pays  his  part  of  that  war-revenue  tax  will  be  contributing 
to  make  up  the  loss  upon  the  shipping  business  which  is  author- 
ized by  this  bill,  and  of  course  it  is  an  emergency  measure. 


THE  SHIP  PURCHASE  BULL  353 

Mr.  Simmons.    Mr.  President  — 

The  Vice-President.  Does  the  Senator  from  New  York 
yield  to  the  Senator  from  North  Carolina  ? 

Mr.  Root.    Yes,  I  yield. 

Mr.  Simmons.  I  assume  that  the  Senator  from  New  York 
does  not  desire  to  misrepresent  the  Secretary  of  the  Treasury 
with  reference  to  the  testimony  given  by  him  about  the  first 
of  September.  I  read  that  testimony  very  carefully  last 
night.  I  think  the  Senator  is  in  error  when  he  states  that  the 
Secretary  of  the  Treasury  admitted  that  this  whole  business 
would  be  operated  at  a  loss.  At  one  stage  of  his  testimony 
there  was  something  said  by  the  Secretary  which  might  have 
had  that  construction,  but  later  the  Secretary  made  the  posi- 
tive statement  that  while  he  was  satisfied  a  part  of  the  ships 
would  be  operated  at  a  loss,  especially  that  part  engaged 
on  the  new  routes  for  the  purpose  of  building  up  new  trade, 
he  was  equally  satisfied  that  other  of  these  ships  would  be 
operated  at  a  profit;  and  there  is  nowhere,  I  think,  in  his 
testimony  anything  that  could  be  construed  as  a  statement, 
taken  in  connection  with  the  qualifications,  that  there  would 
be  a  loss  upon  the  entire  operation. 

Mr.  Root.  The  Secretary  of  the  Treasury  says  in  his 
testimony: 

It  is  not  only  a  question  of  establishing  these  routes,  many  of  which  will 
undoubtedly  have  to  be  ojjerated  at  a  loss  for  a  time  in  order  to  establish 
the  necessary  trade  relationships,  but  the  Government  will  also  have  the 
power  to  establish  rates  that  will  be  advantageous  to  American  commerce. 

He  says: 

I  think  one  of  the  essential  requisites  is  that  the  Government  shall  have 
the  power  to  establish  these  lines  and  see  that  they  are  oj>erated  in  such  a 
way,  even  at  a  loss,  as  to  benefit  the  commerce  of  this  country. 

There  are  other  expressions  at  various  points  in  his  testi- 
mony which  leave  no  doubt  whatever  that  that  is  his  expec- 
tation. 


854  INTERNATIONAL  SUBJECTS 

We  need  not  rely  solely  upon  his  expectations,  for  we  know 
that  as  a  matter  of  fact  private  enterprise  operating  American 
ships  has  been  a  losiag  enterprise.  Upon  good  authority  it  is 
stated  that  there  are,  or  there  were  a  few  weeks  ago,  2,000,000 
tons  of  shipping  engaged  in  the  commerce  of  the  worid  under 
foreign  flags  and  owned  by  American  citizens.  Why  ?  Be- 
cause the  conditions  of  foreign  commerce  under  the  laws  of 
the  United  States  are  such  as  to  make  profit  practically 
impossible. 

The  Senator  from  Massachusetts  [Mr.  Lodge]  has  called  my 
attention  to  a  clause  in  the  President's  message  where  he  says : 

It— 
that  is,  the  Government  — 

It  should  take  action  to  make  it  certain  that  transportation  at  rea- 
sonable rates  will  be  promptly  provided,  even  where  the  carriage  is  not 
at  first  profitable;  and  then,  when  the  carriage  has  become  suflSciently 
profitable  to  attract  and  engage  private  capital,  and  engage  it  in  abimdance, 
the  Government  ought  to  withdraw. 

So  the  proposal  is  to  go  into  a  losing  business,  and  to  go 
into  a  losing  business  at  a  time  when  we  are  making  up  a 
deficit  by  an  extraordinary  war-revenue  tax;  and,  of  course, 
I  say  it  can  be  regarded  only  as  an  emergency  measure. 

Now,  this  bill  authorizes  the  Secretary  of  the  Treasiuy,  the 
Postmaster-General,  and  the  Secretary  of  Commerce  to  buy 
or  build  ships.  How  can  the  emergency  be  met  ?  Mani- 
festly, not  by  building  ships.  The  small  fleet  of  ships  which 
could  be  procured  by  the  use  of  this  $50,000,000  would 
require  from  a  year  to  eighteen  months,  as  I  am  advised, 
to  build.  So  that  will  not  meet  the  emergency.  The  emer- 
gency is  the  prevalence  of  high  rates  for  the  carriage  of 
American  produce  to  Europe.  There  is  no  emergency 
anywhere  else. 

It  is  true  all  the  steamers  in  the  world  that  are  free  are 
coming  in  to  get  the  benefit  of  those  high  rates,  and  the  ordi- 


THE  SHIP  PURCHASE  BILL  855 

nary  working  of  economic  laws  is  sure  to  bring  the  rates 
down.  But  for  the  moment  there  is  the  emergency,  and  but 
one  emergency,  and  that  is  high  rates  of  carriage  for  Ameri- 
can produce  to  Europe. 

It  is  true  our  farmers  are  getting  $1.40  for  their  wheat,  so 
that  those  high  rates  are  paid  not  by  us  but  by  the  purchasers 
abroad.  It  is  true  the  export  of  food-stuffs  has  been  greater 
within  the  last  few  months  than  ever  before  in  our  history. 
Still,  there  is  an  emergency.  It  is  true  cotton  is  bringing 
eight  cents,  and  the  interposition  of  Government  which  was 
so  strenuously  demanded  here  a  few  months  ago  in  order 
to  save  the  cotton  producers,  proved  to  be  unnecessary.  Still 
the  rates  of  transportation  of  cotton  are  high  and  there  is  an 
emergency.  But  the  emergency  cannot  be  met  by  building 
ships.    We  have  got  to  buy  them.    Now,  why  ? 

Mr.  Simmons.  Will  the  Senator  from  New  York  allow  me 
to  ask  him  one  more  question  and  then  I  will  not  interrupt 
him  again  ? 

Mr.  Root.    Certainly. 

Mr.  Simmons.  The  Senator  says  it  is  proposed  that  the 
Government  shall  go  into  a  losing  business.  Does  the  Sena- 
tor see  any  particular  difference  between  the  Government 
going  into  a  losing  business  and  the  Government  inviting 
private  citizens  of  this  country  to  go  into  what  is  admitted  to 
be  a  losing  business  with  a  guarantee  that  by  subsidies  that 
loss  will  be  made  up  out  of  the  Treasury  of  the  United  States? 

Mr.  Root.  Oh,  Mr.  President,  I  see  many  differences,  but 
I  am  not  going  to  discuss  them  here  today.  I  am  speaking 
upon  an  entirely  different  subject.  I  wish  that  I  could  de- 
tach the  miad  of  the  Senator  from  North  Carolina  from  cer- 
tain preconceived  ideas  which  evidently  possess  it,  and  get 
him  to  attend  to  the  subject  that  I  am  talking  about. 

Mr.  Simmons.  The  Senator  was  just  talking  upon  the 
subject  about  which  I  asked  the  question. 


356  INTERNATIONAL  SUBJECTS 

Mr.  Root.  I  have  been  pressing  upon  the  Senate  the 
emergency  nature  of  this  bill,  and  I  had  passed  on  to  the 
question  as  to  how  the  emergency  can  be  met.  I  was  saying 
you  cannot  meet  it  by  building  ships  because  you  cannot  get 
them  in  time  to  meet  the  emergency.  You  have  got  to  buy 
them.  Where  are  you  going  to  buy  them  ?  You  meet  no 
emergency  by  buying  ships  that  are  already  engaged  in  trans- 
porting our  products.  You  meet  no  emergency  by  buying  free 
ships. 

A  report  of  a  committee  of  the  Chamber  of  Commerce  of 
New  York,  presented  to  that  body  on  the  fourth  of  the  present 
month,  makes  an  observation  on  that  subject  which  is  very 
pertinent,  and  it  is  very  good  authority.  This  was  a  special 
committee  on  the  American  merchant  marine  in  foreign 
trade,  appointed  by  the  chamber  of  commerce  of  the  greatest 
commercial  city  of  the  country.  In  their  report,  which  I 
shall  hereafter  have  occasion  to  bring  to  the  attention  of  the 
Senate  at  large,  they  say: 

Government  ownership  of  ocean  lines  cannot  bring  to  our  aid  a  single 
vessel  except  by  building.  Every  steamship  in  the  world  is  working  today 
except  those  interned  in  neutral  ports.  If  these  can  be  transferred  to  our 
flag  without  international  complications,  there  will  be  no  diflSculty  in 
jSnancing  the  transfer  of  those  suitable  for  freight  carrying,  for  their 
earnings  will  justify  the  purchase. 

Now,  that  is  high  authority  of  men  who  know  far  more 
than  you  and  I  know  about  the  great  complicated  world- 
wide business  of  ocean  freight  carriage. 

There  is  left,  then,  to  meet  the  emergency  nothing  but  the 
purchase  of  vessels  which  are  prevented  by  the  conditions  of 
war  from  engaging  in  the  business  of  transp>ortation  now. 
I  therefore  was  not  surprised  in  reading  the  testimony  of  the 
Secretary  of  the  Treasury  to  find  that  he  plainly  contem- 
plated meeting  this  emergency  by  the  purchase  of  vessels 
which  are,  to  use  the  common  although  not  very  correct  ex- 


THE  SHIP  PURCHASE  BH^L  357 

pression,  interned  because  of  war  risks;  that  is  to  say,  the 
vessels  which  are  remaining  in  the  ports  where  they  were 
found  at  the  outbreak  of  the  war,  unable  or  unwilling  to  put 
to  sea  for  fear  of  capture;  vessels  belonging  to  one  or  another 
of  the  belligerent  powers. 

The  Senator  from  Massachusetts  [Mr.  Lodge]  has  called 
attention  to  the  testimony  of  the  Secretary  of  the  Treasury 
upon  this  subject;  there  are  but  a  few  words  of  it,  and  I  wish 
to  call  your  attention  to  it  again  as  a  part  of  what  I  have  to 
say.  In  this  same  hearing  from  which  I  have  quoted  this 
occurred: 

Mr.  Edmonds.  Will  they  not  be  able  to  get  plenty  of  bottoms  when 
they  can  make  financial  arrangements  for  payment  for  the  cargo  ? 

Secretary  McAdoo.  I  do  not  think  so.  An  immense  number  of  bot- 
toms have  been  withdrawn  from  service. 

Mr.  Edmonds.  There  are  still  quite  a  number  of  idle  bottoms  in  New 
York  harbor  today. 

Secretary  McAdoo.  The  number  of  bottoms  that  are  idle  in  New  York 
harbor  are  largely  bottoms  that  cannot  be  put  into  service  now. 

Mr.  Saxjndebs.  How  would  this  bUl  add  to  the  number  of  available 
bottoms  when  it  proposes  to  make  its  purchases  from  existing  bottoms  ? 
It  will  not  add  to  the  volume  of  bottoms. 

Secretary  McAdoo.  There  is  a  large  number  of  idle  bottoms.  They 
may  be  purchased. 

Mr.  Saundebs.    Chiefly,  are  not  those  all  German  bottoms  ? 

Secretary  McAdoo.  More  of  those  are  idle  at  the  moment  than  any 
other. 

Mr.  Saxjndebs.  It  has  been  suggested  that  there  would  be  giave 
objection  to  our  imdertaking  to  purchase  German  bottoms. 

Secretary  McAdoo.    Why  ? 

Mr.  Saunders.  The  newspapers  make  the  statement  that  objection 
has  come  from  the  nations  concerned  in  this  war. 

Secretary  McAdoo.    I  shall  not  attempt  to  talk  of  diplomatic  matters. 

Mr.  Saunders.  They  say  that  would  be  equal  to  furnishing  immediate 
pecuniary  aid  —  that  is,  to  Germany. 

Secretary  McAdoo.  That  is  a  question  altogether  aside,  I  think,  from 
the  issue.  I  believe  that  it  cannot  be  successfully  disputed  by  any  individ- 
ual or  any  nation  that  this  Government  or  any  Government  has  a  right  to 
buy  merchant  ships,  provided  it  buys  them  in  good  faith  and  for  a  neutral 
purpose,  and  that  is  exactly  what  would  be  done  in  this  case. 


358  INTERNATIONAL  SUBJECTS 

The  Chairman.  If  we  should  buy  some  French  ships,  too,  that  would 
alter  the  situation.  In  other  words,  if  they  had  some,  as  well  as  Germany, 
that  objection  would  not  be  urged  ? 

Mr.  SAUNDiats.  We  would  not  buy  any  French  ships,  because  they  are 
not  to  be  bought. 

Secretary  McAdoo.  I  infer  from  what  you  tell  me,  or  from  what  you 
have  read  in  the  papers,  that  those  ships,  if  purchased,  would  be  purchased 
from  the  German  Government.  I  understand  that  those  ships  are  simply 
owned  by  German  companies  in  which  German  citizens  are  stockholders. 
It  does  not  follow  that  the  proceeds  of  a  purchase  from  a  private  corpjora- 
tion  of  that  country  would  be  turned  over  to  the  Government. 

It  is  quite  plain  that  Secretary  McAdoo  took  the  same  view 
of  the  way  in  which  it  would  be  possible  —  the  only  way  in 
which  it  would  be  possible  —  to  utilize  this  legislation  for  the 
purpose  of  meeting  this  emergency,  that  I  take;  that  is,  that 
the  only  way  is  to  purchase  these  idle  bottoms,  to  purchase 
these  ships  of  belligerents  which  are  imable  to  go  to  sea  be- 
cause, if  they  went  to  sea,  they  would  be  captured.  It  is 
perfectly  evident  that  that  purchase  was  in  the  contempla- 
tion of  the  officer  who  was  to  be  the  head  of  the  shipping 
board,  and  who  came  before  the  committee  of  the  House  to 
explain  the  bill.  He  came,  having  in  mind  this  bill  as  a 
bill  which  would  enable  him  and  his  associates,  when  passed 
into  a  law,  to  buy  those  ships.  In  the  report  in  the  House 
which  followed  this  testimony.  Report  No.  1149,  Sixty- 
third  Congress,  second  session,  by  Mr.  Alexander,  submitted 
September  8,  1914,  the  committee  say: 

Fears  are  expressed  that  we  will  involve  ourselves  in  complications  with 
Great  Britain  and  France  if  we  buy  German  ships.  That  may  be.  The 
bill  does  not  direct  the  shipping  board  to  buy  ships  of  the  subjects  of  any 
particular  nation.  They  have  the  widest  discretion  in  the  purchase  or 
construction  of  vessels.  We  have  no  reason  to  beUeve  they  will  act 
otherwise  than  with  the  greatest  care  in  whatever  they  may  do. 

It  is  perfectly  plain  that  the  committee  of  Congress  which 
reported  the  bill  did  it  with  the  understanding  that  the  bill 
authorizes  the  Secretary  of  the  Treasury,  the  Secretary  of 


THE  SHIP  PURCHASE  BILL  359 

Commerce,  and  the  Postmaster-General  to  buy  these  ships, 
and  that  they  were  contemplating  the  purchase  of  these  ships 
in  a  situation  that  cannot  be  met  in  any  other  way  than  by 
the  purchase  of  these  ships. 

The  Secretary  of  the  Treasury  made  a  speech  on  this  sub- 
ject in  Chicago.  It  is  a  speech,  the  central  thought  of  which 
is  one  of  the  most  amazing  ever  proposed  by  a  responsible 
oflBcer  of  the  Government  of  the  United  States.  While  it  is 
apart  from  the  line  of  my  discussion,  I  cannot  refrain  from 
quoting  it.    He  said: 

The  objection  that  the  shipping  bill  puts  the  Government  in  the  ship- 
ping business  is  not  tenable.  Those  who  lu-ge  it  seem  to  forget  that  it  is  the 
duty  of  the  Government  to  engage  in  any  activities,  even  of  a  business 
natm-e,  which  are  demanded  in  the  interest  of  all  the  people  of  the  country, 
when  it  is  impossible  to  engage  private  capital  in  such  operations. 

Do  my  friends  think  that  that  proposition  does  not  need 
discussion  by  the  Congress  of  the  United  States  and  by  the 
people  of  the  United  States,  before  the  man  who  holds  that 
view  has  imlimited  millions  put  into  his  hands  with  which  to 
put  the  Government  into  business  ? 

I  will  return  to  the  precise  hne  of  discussion;  and  that  is 
the  contemplation  and  the  purpose  to  meet  this  emergency 
by  the  purchase  of  the  belligerent  ships  that,  unless  we  buy 
them,  cannot  go  to  sea  without  being  captured.  In  this 
speech  the  Secretary  further  said: 

Some  timid  i)eople  have  argued  that  if  the  Government  is  interested  as 
a  stockholder  in  a  shipping  company,  and  a  ship  of  such  company  should  be 
seized  by  a  belligerent  and  brought  into  a  prize  court,  the  sovereignty  of  the 
Government  would  be  involved.  There  is  no  ground  whatever  for  this 
view.  If  the  Grovernment  operated  ships  outright,  just  as  it  op)erates  the 
vessels  of  our  navy,  an  awkward  situation  of  this  character  might  arise; 
but  where  a  nation  is  merely  a  stockholder,  or  the  sole  stockholder,  in  a 
private  corporation,  its  sovereignty  is  not  and  cannot  be  directly  involved 
if  the  ships  of  such  a  corporation  become  the  subjects  of  litigation  in  a  prize 
court  concerning  any  issue  which  does  not  involve  the  Government  itself. 
The  Government  would  stand  in  relation  to  such  a  corporation  exactly 


860  INTERNATIONAL  SUBJECTS 

as  any  individual  stockholder  does  to  a  corporation  in  which  he  is  inter- 
ested. A  suit  against  the  corporation  does  not  necessarily  involve  the 
shareholders. 

You  perceive,  sir,  whenever  this  subject  is  suggested  and 
objection  is  made  to  the  purchase  of  these  ships,  it  is  met  by 
an  argument  in  favor  of  the  purchase  of  the  ships.  This  is  the 
last  argument  which  has  come  to  my  notice  from  the  Secre- 
tary of  the  Treasury,  having  been  delivered  on  the  ninth  of 
this  month,  after  the  pending  bill  was  laid  before  the  Senate 
—  an  argument,  a  lawyer's  argument,  by  the  man  who  is  to 
be  the  head  of  the  shipping  board  in  favor  of  the  power 
to  buy  the  ships. 

The  Secretary  of  Commerce  has  said  in  a  speech  which  I 
have  not  before  me,  deUvered  last  Friday,  I  believe,  at  St. 
Louis,  that  he  contemplated  the  purchase  of  British  ships. 
Mr.  President,  there  is  no  difference  in  principle,  and  before 
I  get  through  I  think  I  shall  show  that  there  is  no  difference  in 
the  obstacles  in  the  way  of  purchasing  ships  of  one  belHgerent 
as  compared  with  the  ships  of  another  belligerent. 

I  am  not  talking  about  this  because  the  ships  are  Ger- 
man; I  am  talking  about  it  because  they  are  belligerent 
ships,  and  they  are  liable  to  be  captured  on  the  high  seas  as 
belligerents;  they  are  liable  to  be  torpedoed  by  submarines 
as  belUgerents;  they  are  liable  to  be  seized  in  foreign 
ports  as  belligerents;  and  I  am  alarmed  by  the  evidences 
here  that  the  proposed  shipping  board  means  to  put  the 
Government  of  the  United  States  in  the  position  of  giving 
the  protection  of  its  flag  to  such  ships  when  they  sail  out. 
German,  or  British,  or  French,  or  Austrian,  or  Russian,  or 
what  not,  the  objection  is  to  the  purchase  of  belligerent 
ships,  and,  as  I  have  said,  that  objection  has  been  met  by 
the  argument  to  which  I  have  referred  whenever  it  has  been 
proposed  to  the  gentlemen  whom  we  are  about  to  endow 
with  these  vast  powers. 


THE  SHIP  PURCHASE  BILL  361 

But  there  is  another  circumstance  more  potent  in  its  effect 
upon  my  mind  than  the  manifest  necessities  of  the  emergency 
which  would  require  the  purchase  of  belligerent  ships,  more 
compelling  in  my  mind  than  the  expressions  of  the  gentlemen 
who  are  going  to  transact  the  business  in  favor  of  the  right  to 
purchase  belligerent  ships,  more  compelling  even  than  the 
practical  admission  that  that  is  what  they  have  in  mind,  and 
that  is  the  filing  of  an  opinion  by  the  Solicitor  of  the  State  De- 
partment in  the  Senate  on  the  eleventh  of  August  last.  The  bill 
to  create  the  shipping  board  and  to  endow  it  with  the  power 
to  build  or  buy  ships  had  just  been  introduced  in  the  House 
when,  on  the  eleventh  of  August,  a  paper  was  presented  by  the 
Senator  from  New  York  [Mr.  O'Gorman]  to  be  printed,  and 
it  was  printed  as  Document  No.  563,  Sixty-third  Congress, 
second  session.  That  paper  contained  an  opinion  by  Mr. 
Cone  Johnson,  Solicitor  of  the  State  Department.  In  support 
of  the  right  to  buy  these  ships,  he  states  these  conclusions: 

1.  Merchant  ships  of  a  belligerent  may  be  transferred  to  a  neutral  after 
the  outbreak  of  hostilities. 

2.  If  the  sale  of  the  ship  is  made  in  good  faith,  without  defeasance  or 
reservation  of  title  or  interest  in  the  vendor,  without  any  understanding, 
expressed  or  tacit,  that  the  vessel  is  to  be  retransferred  after  hostilities  and 
without  the  indicia  or  badges  of  a  collusive  or  colorable  transaction. 

3.  But  transfer  cannot  be  made  of  such  vessel  in  a  blockaded  port  or 
while  in  transitu. 

4.  The  transfer  must  be  allowable  under  and  in  conformity  to  the 
municipal  regulations  of  the  country  of  the  neutral  purchaser. 

5.  The  declaration  of  the  London  convention  that  transfers  of  an 
enemy  vessel  to  a  neutral  during  war  will  not  be  valid  unless  it  be  shown 
that  the  same  was  not  made  to  evade  the  consequences  to  which  an  enemy 
vessel,  as  such,  is  exposed,  if  it  were  controlling  of  the  question,  relates 
only  to  the  good  faith  of  the  transfer  and  not  to  the  ulterior  motive  of  the 
parties  to  reap  the  natural  advantages  to  flow  from  the  operation  of  the 
vessel  under  the  flag  of  a  country  not  at  war,  while  it  inverts  the  burden  of 
proof  of  the  good  faith  of  the  transaction. 

That  opinion  was  dated  August  7, 1914.  It  was  presented 
in  the  Senate  August  11,  four  days  after,  almost  coinciden- 


362  INTERNATIONAL  SUBJECTS 

tally  with  the  introduction  of  the  bill,  and  it  must  stand 
before  us  as  the  opinion  upon  which  this  legislation  finds  its 
claim  of  right. 

Mr.  Johnson  is  a  lawyer  of  character  and  position,  a  lawyer 
of  abihty,  but  he  says  in  the  conclusion  at  the  close  of  the 
opinion: 

This  memorandum  is  hmriedly  struck  ofiF,  and  I  have  not  had  time  or 
opportunity  to  revise  it;  but  it  is  beUeved  that  it  correctly  presents  the 
status  of  the  question  involved. 

Why  "  hurriedly  struck  oflf  "  ?  "What  exigency  called  for 
haste  in  the  consideration  of  this  vastly  important  subject  ? 
The  answer  may  be  found  by  sending  oxir  minds  back  to  the 
fact  that  it  was  announced  and  publicly  reported  that  it  was 
intended  to  put  this  shipping  bill  through  then,  last  summer, 
during  the  last  session;  and  this  hurried  memorandum  —  a 
lawyer's  opinion  that  it  is  all  right  to  buy  these  belligerent 
ships  —  is  the  basis  upon  which  the  legislation  proceeds. 

Mr.  Simmons.  Mr.  President,  will  not  the  Senator  permit 
me  to  interrupt  him  once  more  ? 

The  Vice-President.  Does  the  Senator  from  New  York 
yield  to  the  Senator  from  North  Carolina  ? 

Mr.  Root.    Certainly. 

Mr.  Simmons.  I  wish  to  ask  the  Senator  if,  at  the  time  that 
opinion  was  presented  to  the  Senate,  the  Senate  was  not  en- 
gaged in  the  consideration  of  the  ship  registry  bill,  and  if  it 
was  not  with  reference  to  the  ship  registry  bill  that  that 
opinion  was  expressed  ? 

Mr.  Root.  I  do  not  know.  I  have  not  looked  to  see,  and  I 
have  not  cared  to  see,  what  particular  thing  the  Senate  was 
engaged  in  doing.  What  I  do  see  is  that  in  great  haste,  coin- 
cidently  with  the  beginning  of  this  movement  for  the  pur- 
chase of  ships,  there  is  presented  to  us  a  lawyer's  opinion,  that 
we  have  a  right  to  buy  these  belligerent  ships.  Therefore, 
Mr.  President,  I  have  come  to  the  conclusion  that  the  inter- 


THE  SHIP  PURCHASE  BHJ.  363 

national  situation  is  important,  that  it  is  serious,  that  it  is  our 
duty  to  consider  it,  and  that  it  is  my  duty  to  discuss  it. 

There  are  two  reasons  which  press  that  duty  upon  me  with 
great  weight.  One  is  that  I  find,  according  to  my  own 
opinion,  which  is  fallible,  upon  which  I  do  not  place,  I  hope, 
any  greater  weight  than  long  experience  of  many  errors  leaves 
in  my  mind,  that  in  the  haste  which  for  some  reason  or  other 
was  imposed  upon  him,  the  SoHcitor  of  the  State  Depart- 
ment has  failed  to  consider  fully  the  state  of  the  law  regard- 
ing which  he  was  writing,  and  has  been  led,  through  the 
inadvertence  of  haste,  to  give  radically  and  seriously  incor- 
rect advice  upon  this  important  subject. 

The  other  consideration  which  makes  me  feel  bound  to  ask 
for  the  attention  of  the  Senate  to  my  own  views  of  what  is  the 
true  state  of  the  law,  is  the  fact  that  it  happened  to  be  my 
duty  to  give  the  instructions  for  the  Government  of  the 
United  States  to  the  delegates  to  the  London  conference,  and 
to  direct  their  action  during  all  the  eariier  part  of  the  exist- 
ence of  that  conference  by  daily  cable  communication,  and 
afterwards  as  a  member  of  the  Foreign  Relations  Committee 
of  the  Senate,  to  discuss  and  vote  favorably  upon  the  report 
of  the  conclusions  of  that  conference,  and  afterwards,  as  a 
member  of  the  Senate,  to  vote  to  advise  the  President  to  ratify. 
So,  when  I  see  that  under  the  law  which  I  am  advised  we 
are  about  to  pass  it  is  the  intention  of  the  agents  whom  we 
shall  constitute,  to  buy  these  ships;  when  I  see  that  that  pur- 
pose has  been  formed  and  is  liable  to  be  executed  under  what 
I  believe  to  be  an  erroneous  opinion  as  to  the  state  of  the 
law  and  the  international  situation  which  they  will  meet,  I 
feel  bound  to  give  the  best  I  can  in  the  way  of  expressing  and 
explaining  my  views  of  the  true  conditions  of  the  law. 

I  am  going  now  to  say  something  which  most  of  you  know. 
Some  of  you  may  not  have  given  attention  to  it,  however,  and 
therefore  I  will  state  the  rudiments  of  the  case. 


364  INTERNATIONAL  SUBJECTS 

The  London  conference  was  a  sequel  of  the  second  Hague 
Conference  of  1907.  At  this  second  Hague  Conference,  the 
delegates  of  the  United  States,  under  the  instructions  of 
their  Government,  pressed  strongly  for  the  creation  of  two 
judicial  tribunals  which  should  pass  upon  international  dis- 
putes. One  was  an  international  prize  court,  made  up  by  the 
representatives  of  different  nations,  which  should  pass  upon 
questions  of  prize  —  just  such  questions  as  are  arising  now  — 
so  that  instead  of  going  to  the  coiui:s  of  the  captor  country, 
which  apply  the  law  of  that  coimtry,  with  the  disadvantages 
that  a  claimant  naturally  has  in  going  into  the  country  of  the 
captor  and  arguing  his  case  before  a  branch  of  the  govern- 
ment that  has  captured  his  ship,  he  would  go  to  an  impartial 
tribunal,  selected  from  the  various  countries  of  the  world. 
That  court  was  created  by  a  treaty  called  "  the  prize-court 
treaty."  The  other  court  was  a  general  judicial  tribunal 
which  should  pass  upon  all  justiciable  questions  arising  be- 
tween nations,  to  be  composed  of  judges  who  should  devote 
their  entire  time  to  it,  and  be  paid  adequate  salaries,  and  be 
a  really  judicial  tribunal.  That  court  never  has  been 
constituted,  although  provision  was  made  for  it. 

It  was  not  constituted  because  there  could  not  be  an  agree- 
ment upon  the  manner  of  appointing  the  judges;  but  the 
prize-court  treaty  was  signed,  and  that  has  been  ratified  by 
the  United  States.  That  is  to  say,  the  Senate  has  advised 
and  consented  to  its  ratification.  But  when  it  came  to  the 
ratification  of  that  treaty  by  European  powers,  there  arose 
a  question  as  to  what  law  the  court  would  apply,  and  it 
seemed  to  many  representatives  of  different  European  coim- 
tries  that  there  was  a  long  list  of  disputed  questions  that  a 
prize  court  would  have  to  pass  upon,  and  that  in  order  to 
make  the  coiui;  effective,  there  must  be  some  agreement 
upon  the  law  they  were  to  apply  —  questions  relating  to 
blockade,  relating  to  contraband,  relating  to  continuous 


THE  SHIP  PURCHASE  BH^L  S65 

voyages,  relating  to  the  transformation  of  merchant  ships 
into  warships,  relating  to  the  transfer  of  ships  from  a  bellig- 
erent to  a  neutral  flag;  and  accordingly  Great  Britain  called 
a  meeting  of  the  representatives  of  the  chief  commercial 
powers  of  the  world,  to  be  held  in  London  ia  December,  1908. 
That  meeting  was  attended  by  the  representatives  of  Great 
Britain,  France,  the  Netherlands,  Germany,  Austria,  Italy, 
Spain,  Russia,  Japan,  and  the  United  States.  I  think  I  have 
enumerated  them  all.  There  were  ten  of  them.  They  dis- 
cussed these  difficult  questions.  There  was  long  discussion 
upon  the  question  which  is  raised  by  the  proposal  to  buy 
these  belligerent  ships  —  that  is,  the  right  of  transfer  of 
a  vessel  from  a  belligerent  flag  to  a  neutral  flag.  The  con- 
clusions to  which  the  conference  came  upon  that  subject 
were  stated  in  these  words: 

*        TRANSFER  TO  A  NEUTRAL  FLAG.      ARTICLE  55 

The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected  before  the 
outbreak  of  hostilities,  is  valid,  unless  it.  is  proved  that  such  transfer  was 
made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as 
such,  is  exposed. 

Then  follows  a  clause  which  is  not  pertinent  here,  and  the 

article  proceeds: 

Where  the  transfer  was  effected  more  than  thirty  days  before  the  out- 
break of  hostilities,  there  is  an  absolute  presumption  that  it  is  valid  if  it  is 
unconditional,  complete,  and  in  conformity  with  the  laws  of  the  countries 
concerned,  and  if  its  effect  is  such  that  neither  the  control  of,  nor  the  profits 
arising  from  the  employment  of,  the  vessel  remain  in  the  same  hands  as 
before  the  transfer. 

Then  there  is  a  clause  not  relevant  here,  and  then  follows : 

Art.  5Q.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected  after 
the  outbreak  of  hostilities  is  void  unless  it  is  proved  that  such  transfer  was 
not  made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as 
such,  is  exposed. 

Then  follow  some  clauses  not  relevant  here. 
You  have  there,  sir,  three  situations  stated: 


366  INTERNATIONAL  SUBJECTS 

First.  If  the  transfer  is  effected  before  the  banning  of 
hostilities  it  is  valid  unless  it  is  proved  that  the  transfer  was 
made  in  order  to  evade  the  consequences  to  which  the  enemy 
vessel,  as  such,  is  exposed. 

Second.  If  the  transfer  was  effected  more  than  thirty  days 
before  the  opening  of  hostiUties,  there  is  an  absolute  pre- 
sumption that  it  is  valid,  even  though  it  was  made  in  order  to 
evade  the  consequences  to  which  an  enemy  vessel,  as  such,  is 
exposed,  provided  it  is  unconditional,  complete,  and  there  is 
no  interest  reserved.  Of  course,  the  declaration  that  a  trans- 
fer more  than  thirty  days  before  the  outbreak  of  hostilities  is 
valid  if  it  is  unconditional,  complete,  and  in  conformity  with 
the  laws  of  the  countries  concerned,  neither  the  control  of 
nor  the  profits  arising  from  the  employment  of  the  vessel  re- 
maining in  the  same  hands  as  before  the  transfer,  carries  by 
necessary  implication  the  declaration  that  a  transfer  made 
less  than  thirty  days  before  the  opening  of  hostilities  is  not 
vahd,  although  all  those  conditions  exist,  provided  it  was 
made  to  evade  the  consequences  to  which  an  enemy  vessel, 
as  such,  is  exposed. 

The  third  situation,  is  a  transfer  after  the  outbreak  of  hos- 
tihties,  where  the  transfer  is  void,  unless  it  is  proved  that  it 
was  not  to  evade  the  consequences  to  which  an  enemy  vessel, 
as  such,  is  exposed. 

It  is  the  opinion  of  the  Solicitor,  who  has  given  that  opinion 
to  the  State  Department,  as  it  has  been  communicated  to  us, 
that  these  provisions  of  the  Declaration  of  London  do  not  in- 
volve any  question  as  to  the  motive  with  which  the  transfer  is 
made;  that  when  the  declaration  says  the  transfer  shall  be 
valid  before  hostilities  unless  it  is  proved  that  it  was  made  in 
order  to  evade,  and  that  it  shall  be  invaHd  after  hostilities 
unless  it  is  proved  that  it  was  not  made  in  order  to  evade,  it 
involves  no  question  of  motive.  Prima  facie,  one  would  say 
that  that  is  all  motive;  that  there  is  nothing  but  motive  in 


THE  SHIP  PURCHASE  BJLL  367 

that  provision.  A  thing  done  in  order  to  evade  is  done  with 
the  motive  of  evading.  There  would  seem  to  be  nothing  but 
motive  in  this;  but  the  SoUcitor  does  not  think  so,  and  he  has 
advised  to  the  contrary. 

Now,  sir,  the  question  may  arise,  and  naturally  would 
arise.  Why  should  we  discuss  the  Declaration  of  London  ? 
Why  should  the  Solicitor  have  given  an  opinion  upon  the 
Declaration  of  London  ?  It  has  not  been  ratified.  The 
Senate  has  advised  and  consented  to  its  ratification,  but 
before  the  documents  of  ratification  were  ever  deposited  the 
war  came,  and  it  never  has  been  ratified.  The  reason  why 
the  Declaration  of  London  is  subject  to  consideration  al- 
though we  are  not  bound  by  it,  is  that  England  and  France 
and  Russia  have  adopted  it  with  some  modifications  not 
touching  this  subject,  as  their  law  for  the  present  conflict. 

Let  me  repeat,  for  the  purpose  of  making  myself  clear,  we 
are  not  bound  by  the  Declaration  of  London  because  it  has 
not  been  ratified;  that  is,  we  are  not  bound  by  it  as  a  conven- 
tion, as  an  agreement,  whatever  effect  the  steps  which  led  to 
it  may  have  upon  the  propriety  or  wisdom  of  our  conduct. 
The  convention  which  embodied  that  agreement  has  not  be- 
come a  binding  convention  among  the  nations  of  the  earth. 
It  receives  its  importance  because  England  and  France  and 
Russia  have,  by  express  provision,  made  it  the  law  of  those 
respective  coxmtries,  and  Germany,  in  an  order  to  which  I 
shall  call  your  attention  later,  has  in  substance  done  the  same 
thing.  Her  law  for  this  war  in  somewhat  different  phrase, 
but  with  the  same  effect,  is  made  to  conform  to  the  terms  of 
the  Declaration  of  London  which  I  have  read. 

It  may  be  fortunate  for  us,  fortunate  for  all  who  wish  to 
secure  freedom  of  trade,  that  this  is  so,  because  when  the 
conference  of  London  met  in  December,  1908,  there  was  no 
rule  of  international  law  regarding  the  transfer  of  a  vessel 
from  a  belligerent  to  a  neutral  flag.    International   law 


368  INTERNATIONAL  SUBJECTS 

requires  the  general  acceptance  of  nations,  and  there  had 
been  no  general  acceptance  of  any  rule  by  the  nations  of 
the  earth. 

The  first  thing  that  was  done  in  the  conference  was  to  call 
for  a  statement  from  the  different  countries  regarding  their 
position  upon  the  various  disputed  points  that  the  conference 
sought  to  settle,  and  I  call  your  attention  now  to  the  rules 
which  were  stated  by  the  principal  countries  concerned  in  the 
present  war. 

I  read  from  the  proceedings  of  the  International  Naval 
Conference  held  in  London,  December,  1908,  to  February, 
1909,  printed  by  the  British  Government  and  called  "  Mis- 
cellaneous No.  5,  1909." 

I  will  say  that  this  report  of  the  proceedings  has  never  been 
translated  from  the  original  French,  it  is  not  open  to  access 
generally,  and  I  think  it  must  have  been  that  the  Solicitor, 
in  the  haste  of  preparing  his  opinion,  has  failed  to  observe  the 
contents  of  this  report,  which  gives  the  proceedings,  the  dis- 
cussion, and  conclusions  reached  from  time  to  time  by  the 
conference.  I  am  sure  that  if  he  had  read  this  attentively  he 
would  have  come  to  a  different  conclusion. 

I  call  your  attention  now  to  the  rules  of  national  law  stated 
by  these  different  nations  at  the  opening  of  the  conference,  for 
that  is  the  background  to  which  we  have  to  go. 

France.  The  change  of  nationality  of  ships  of  commerce  eflFectuated 
after  the  declaration  of  war  is  null  and  of  no  effect. 

Russia.  The  belligerents  have  the  right  not  to  recognize  the  neutral 
character  of  every  ship  of  commerce  purchased  by  neutral  citizens  from  an 
enemy's  state  or  one  of  its  nationals,  unless  the  new  proprietor  proves  that 
the  acquisition  had  become  definitive  before  he  had  knowledge  of  the 
commencement  of  the  war. 

Germany.  The  neutral  or  enemy  character  of  a  ship  of  commerce  is 
determined  by  the  JBag  that  it  carries.  A  ship  flying  a  neutral  flag  will 
nevertheless  be  treated  as  an  enemy  ship  if  up  to  the  opening  of  hostilities 
or  within  the  two  weeks  which  have  preceded,  it  has  carried  the  enemy 


THE  SHIP  PURCHASE  BH^L  369 

There  are  France,  Germany,  and  Russia.  Great  Britain 
and  the  United  States  presented  an  entirely  different  rule, 
the  rule  of  complete  transfer  and  good  faith.  The  Sohcitor 
for  the  State  Department  has  substantially  stated  what  the 
American  rule  has  been  and  what  the  British  rule  has  been, 
subject  to  some  modifications  which  it  perhaps  was  not 
necessary  that  he  should  state. 

In  the  conference  these  two  different  views  confronted  each 
other,  the  view  of  France  and  Russia  and  Germany  that  a 
transfer  after  the  opening  of  hostilities  was  void  and  the  view 
of  Great  Britain  and  the  United  States  that  a  transfer,  made 
complete  and  in  good  faith,  would  be  recognized. 

Mr.  President,  there  being  no  rule  of  international  law, 
each  country  applies  its  own  law  in  such  cases.  Indeed,  when 
a  capture  is  made  it  is  always  made  under  the  law  of  the 
captor.  That  is  oiu:  law.  Our  Supreme  Court  has  decided 
it.  It  is  the  municipal  law  of  the  captor  that  is  in  force  when 
the  capture  is  made. 

The  courts  of  England  and  America  have  said  that  the  law 
of  nations  is  a  part  of  the  law  of  the  country,  and  we  enforce 
the  law  of  nations.  But  here  there  was  no  law  of  nations  be- 
cause no  rule  had  ever  been  accepted.  So  as  the  law  stood 
when  this  conference  opened,  if  there  had  been  a  transfer  of 
a  merchant  ship  from  the  flag  of  a  belligerent  to  the  flag  of  a 
neutral  any  time  after  the  opening  of  hostilities,  the  armed 
ships  of  France,  of  Germany,  and  Russia  would  have  ignored 
the  transfer  and  treated  the  vessel  as  an  enemy  vessel,  not- 
withstanding the  transfer. 

Mr.  President,  that  was  the  law  of  France  when  her  navy 
rendered  us  a  service  more  memorable  than  any  other  that 
one  nation  ever  rendered  to  another,  and  held  the  mouth  of 
the  Chesapeake  and  made  the  surrender  at  Yorktown  pos- 
sible. That  was  the  law  of  France  then  and  for  all  the  cen- 
tury and  more  that  has  passed.    That  was  the  law  of  Russia 


370  INTERNATIONAL  SUBJECTS 

on  that  never-to-be-forgotten  day  when  her  fleet  sailed  mto 
the  harbor  of  New  York  during  the  Civil  War.  That  was  the 
law  of  Germany,  whose  ships  are  lying  unable  to  proceed  to 
sea  in  the  harbors  of  New  York,  Boston,  Philadelphia,  and 
other  ports.  There  was  no  escape  from  the  capture  of  any 
vessel  from  one  of  these  belligerents  by  the  cruisers  of  an- 
other beUigerent  which  might  chance  to  meet  her,  notwith- 
standing the  transfer  to  the  American  flag,  except  to  compel 
these  great  nations  to  abandon  the  law  they  have  held  for 
generations. 

Mr.  Williams.  I  should  like  to  ask  the  Senator  from  New 
York  a  question,  if  he  will  yield  for  that  purpose. 

Mr.  Root.    Certainly. 

Mr.  Williams.  Notwithstanding  the  fact  that  this  was 
the  law  of  Russia  and  of  France,  and  it  has  been  the  law  of 
those  two  nations  for  a  long  time,  have  they  not  agreed 
during  the  present  war  to  adopt  the  Declaration  of  London 
as  their  law  ? 

Mr.  Root.    Mr.  President,  I  have  already  stated  that. 

Mr.  Williams.    Then  if  that  be  true  — 

Mr.  Root.  I  beg  the  Senator  not  to  draw  me  on  by  lead- 
ing me  into  a  discussion  of  questions,  however  interesting 
they  are,  which  arise  in  his  mind,  because  if  I  do  what  I  think 
I  ought  I  have  got  to  go  through  a  rather  complicated  sub- 
ject. As  I  have  already  said,  the  significance  of  the  Declara- 
tion of  London  is  that  these  countries  who  started  with  these 
perfectly  strict  and  unyielding  rules  have  adopted  the 
Declaration  of  London  as  their  rule  for  this  war. 

Mr.  Williams.  And  have  modified  their  old  position  to 
that  extent. 

Mr.  Root.  They  have  modified  their  old  position  to  that 
extent.  So,  although  the  Declaration  of  London  is  not  bind- 
ing upon  us  as  a  convention,  although  it  was  never  ratified, 
if  we  undertake  to  protect  our  flag  upon  a  ship  purchased 


THE  SHIP  PURCHASE  BH^L  371 

from  a  belligerent  we  are  driven  to  the  Declaration  of  London 
as  the  basis  on  which  we  must  proceed.  The  old  law  was 
much  more  strict  and  unyielding  than  the  Declaration  is,  and 
that  is  why  the  Solicitor  of  the  State  Department  was  quite 
right  in  giving  his  opinion  regarding  the  meaning  of  this  pro- 
vision of  the  Declaration  of  London,  and  that  is  why  I  am 
going  on  to  discuss  that  meaning.  I  have  taken  so  much  time 
because  I  have  frequently  observed  the  statement  about  the 
Declaration  of  London,  that  it  is  not  binding;  that  it  was  not 
ratified.  If  we  could  not  have  recourse  to  that  Declaration 
of  London,  these  old  rules  are  the  only  thing  we  would  meet. 

We  have  then  reached  this  position,  that  these  belligerent 
powers  —  England,  France,  Russia,  and  Germany  —  will 
enforce  the  provision  of  the  Declaration  of  London,  and  if  we 
object  to  their  enforcing  that  we  come  against  still  worse 
rules  for  neutral  trade,  that  is,  the  old  rules  which  three  of 
them  stated  at  the  beginning  of  the  conference.  So  their 
adoption  of  the  Declaration  of  London  is  an  advantage  to  us 
of  which  we  must  avail  ourselves  so  far  as  practicable. 

When  the  different  countries  had  stated  their  position  re- 
garding the  transfer  of  the  flag,  there  was  a  statement  pre- 
pared for  the  use  of  the  conference  which  undertook  to 
formulate  certain  propositions  for  discussion,  basing  those 
propositions  upon,  the  varied  statements  of  rules  by  the 
different  countries,  and  the  basis  which  was  formulated  for 
discussion  regarding  the  transfer  of  the  flag  I  will  now  read. 
This  is  basis  35 : 

A  ship  cannot  be  transferred  to  a  neutral  flag  in  order  to  escape  the 
consequences  which  its  quality  as  an  enemy  ship  draws  upon  it. 

86.  The  transfer  effected  before  the  op>ening  of  hostilities  is  valid  if  it 
has  come  about  regularly.  That  is  to  say  if  it  involves  nothing  fictitious  or 
irregular  which  renders  it  suspicious. 

37.  After  the  opening  of  hostilities  there  is  an  absolute  presumption  of 
knowledge  of  the  transfer  which  is  effected  while  the  ship  is  in  the  course 
of  a  voyage. 


372  INTERNATIONAL  SUBJECTS 

Upon  that  they  proceed  to  a  discussion.  After  the  discus- 
sion proceeded  for  a  considerable  time  these  statements  were 
made  by  the  representatives  of  Germany  and  Great  Britain. 
Mr.  Kriege,  the  very  able  and  experienced  adviser  of  the  Ger- 
man Foreign  Office,  who  was  the  representative  of  that 
country  at  this  conference,  said: 

We  are  in  accord  with  the  authors  of  the  summary  upon  the  principle 
that  a  ship  cannot  be  transferred  to  a  neutral  flag  with  a  view  to  escape  the 
consequences  which  its  quality  as  an  enemy  ship  draws  on  it,  but  in  the 
point  of  view  of  existing  rights  and  for  considerations  of  practical  order  we 
wish  to  see  adopted  the  system  of  our  memorandum  which  would  have  the 
double  advantage  of  facihtating  the  task  of  commanders  of  cruisers  and  of 
avoiding  consequences  to  neutral  commerce. 

Mr.  Crowe,  one  of  the  English  delegates,  explained  the 
principle  that  was  intended  to  be  expressed  in  basis  35  — 
that  is  to  say,  "  that  a  commercial  man  subject  of  a  belliger- 
ent state  ought  not  to  escape  the  consequences  of  war  while 
transferring  his  ships  under  a  neutral  flag,  but  the  application 
of  this  principle  it  is  difficult  to  find  among  the  memoranda 
by  a  rule  precise  and  generally  recognized." 

There  you  see  that  the  German  and  the  English  representa- 
tives were  drawing  together  upon  the  rule  which  looked  not 
so  much  to  what  we  would  call  good  faith,  as  to  the  purpose 
for  which  the  transfer  was  made. 

A  short  time  after,  Mr.  Kriege,  the  German  representative, 

stated  with  great  lucidity  the  actual  point  of  difference  which 

had  been  reached  by  the  conference.    I  read  from  page  183  of 

this  publication  of  the  proceedings: 

Mr.  Kriege  exposed  the  manner  in  which,  according  to  him,  this  ques- 
tion ought  to  be  treated  in  the  basis  of  discussion.  This  expose,  with  the 
motives  which  have  inspired  it,  is  found  treated  in  Annex  73. 

A  formal  paper  which  he  presented.  I  call  your  especial 
attention  to  it  because  it  was  a  formal  paper  and  has  a  very 
important  bearing  upon  determining  the  meaning  of  this 
declaration.    In  this  paper  he  says: 


THE  SHIP  PURCHASE  BD^L  S78 

I  desire  to  call  the  attention  of  the  commission  to  a  divergence  which 
appears  to  exist  between  the  proposition  of  the  United  States  of  America 
on  the  one  part,  and,  upon  the  other  part,  the  propositions  of  Great 
Britain  and  Germany. 

Remember  that  our  representatives  and  the  British  repre- 
sentatives had  presented  a  rule  which  called  for  good  faith  in 
the  transfer,  and  now  he  says: 

This  is  a  question  of  the  meaning  of  the  term  "  good  faith."  The 
propositions  are,  all  three,  in  accord  to  prescribe  that  the  transfers  made 
during  a  war  or  inunediately  before  a  war  are  to  be  made  in  good  faith. 

Only  it  seems  that,  in  the  idea  of  the  delegation  of  the  United  States  of 
America,  the  good  faith  would  exist  if  the  agreement  relative  to  the  trans- 
fer was  genuine  and  definitive  and  involved  nothing  fictitious  or  irregular. 
On  the  other  hand  the  German  and  Britannic  propositions  imderstand  by 
good  faith  the  absence  among  the  motives  of  the  transfer  of  the  intention 
to  withdraw  the  ship  from  the  effect  of  the  right  of  capture. 

You  perceive  this  is  precisely  what  Mr.  Johnson  in  his 
opinion  says  does  not  exist  in  the  declaration.  Let  me  read 
it  again: 

On  the  other  hand  the  German  and  British  propositions  imderstand  by 
good  faith  the  absence  among  the  motives  of  transfer  of  the  intention  to 
withdraw  the  ship  from  the  effect  of  the  right  of  capture. 

In  the  sense  of  these  propositions  as  according  to  the  original  text  of 
basis  35  the  transfer  would  be  null  and  without  effect  from  the  moment 
when  it  should  have  been  induced  by  the  desire  of  the  vendor  to  put  him- 
self under  protection  from  the  loss  which  the  confiscation  of  the  ship  would 
inflict  upon  him.  The  transfer  would  be,  on  the  contrary,  recognized  as 
valid  when  there  was  ground  to  believe  that  it  would  have  been  effected 
also  if  the  war  had  not  arisen  or  had  not  been  imminent  at  the  moment  of 
the  conclusion  of  the  contract. 

After  that  presentation  of  the  precise  point  in  diflference 
which  had  been  reached  between  the  delegates  of  the  United 
States  on  the  one  hand  and  the  delegates  of  these  other 
powers,  including  England  and  Germany,  on  the  other  hand, 
the  subject  was  submitted  to  a  drafting  committee  to  en- 
deavor to  formulate  a  rule  which  would  be  satisfactory,  and 
I  now  wish  to  call  your  attention  to  the  report  of  that 


374  INTERNATIONAL  SUBJECTS 

committee.  I  will  say,  in  order  to  indicate  the  materiality  of 
the  report,  that  it  contains  the  rule  which  now  appears  in 
the  declaration.  It  was  presented  in  the  ninth  session  of  the 
commission  —  that  is,  with  the  conference  sitting  as  in 
committee  of  the  whole  —  on  February  6,  1909.  I  read  the 
record  of  proceedings: 

The  delegation  of  the  United  States  of  America  made  a  reserve  on  the 
subject  of  the  first  article  of  the  rule  — 

which  was  reported  upon  the  transfer  of  a  flag,  and  the  com- 
mittee of  the  whole,  the  commission,  adopted  the  report  with 
the  understanding  that  the  part  to  which  the  American  dele- 
gates objected,  upon  which  they  made  their  reserve,  was  to 
be  reconsidered,  and  not  deemed  as  adopted.  That  reserve 
of  the  American  delegates  appears  on  page  290  of  these 
proceedings.  By  reference  to  it,  we  find  that  it  related  not  at 
all  to  the  transfer  of  the  flag  after  the  opening  of  hostihties, 
but  related  solely  to  the  transfer  of  the  flag  before  the  opening 
of  hostihties.    They  say: 

The  American  delegation  regrets  to  find  itself  obliged  to  make  a  reserve 
up>on  the  first  article  of  the  regulation  relative  to  the  transfer  of  flag.  It 
considers  that  a  rule  which  says,  "  The  transfer  to  a  neutral  flag  of  an 
enemy  ship  before  the  opening  of  hostihties  is  valid,  unless  it  shall  be  estab- 
lished that  the  transfer  has  been  effected  with  a  view  to  escape  the  con- 
sequences which  the  enemy  character  of  the  ship  draws  upon  it,"  is  not  in 
accord  with  the  spirit  of  modem  rules  adopted  at  The  Hague  concerning 
war,  which  have  for  their  end  to  guarantee  the  security  of  international 
commerce  against  the  surprises  of  war  and  wishing,  conformably  to 
modem  practice,  to  protect  as  much  as  possible  the  operations  engaged 
in  in  good  faith  and  in  course  of  execution  before  the  beginning  of 
hostilities. 

The  report  was  reconsidered  upon  that  reserve.  You  per- 
ceive the  American  delegates  accepted  the  rule  which  related 
to  transfers  after  the  beginning  of  hostihties,  but  objected  to 
the  rule  relating  to  transfers  before.  A  compromise  was 
made.    Under  that  compromise  a  new  provision  making  a 


THE  SHIP  PURCHASE  BH^L  375 

distinction  between  transfers  thirty  days  before  and  less  than 
thirty  days  before  the  opening  of  hostilities,  was  made. 
Upon  that  our  delegates  agreed;  that  is  to  say,  they  got  a 
rule  which  made  all  transfers  more  than  thirty  days  before 
the  war  valid,  if  they  were  real;  they  got  a  rule  which  made 
all  transfers  at  any  time  valid  if  they  were  not  made  with  the 
motive  of  avoiding  the  risk  of  war.  Before  thirty  days  they 
were  valid  even  though  they  were  made  with  that  motive; 
after  thirty  days  they  were  vahd  unless  they  had  that  motive. 
On  that  they  agreed. 

When  the  drafting  committee  came  to  make  its  report  to 
the  committee  of  the  whole,  there  was  a  full  discussion  of  the 
question  which  Mr.  Kriege  had  brought  up  by  his  very  lucid 
statement  of  the  different  views  as  to  what  constituted  good 
faith.  That  report  leaves  no  doubt  as  to  the  meaning  of  this 
regulation,  and  no  doubt  whatever  that  the  advice  which 
has  been  given  to  the  State  Department  and  communicated 
to  us  as  a  basis  for  this  legislation,  is  erroneous.  The  report 
says  —  I  read  from  pages  326  and  327  of  the  proceedings 
of  the  conference,  translating,  I  hope,  with  substantial 
correctness. 

The  report  has  just  stated  the  rules  as  I  have  read  them, 
the  rules  as  they  were  finally  adopted.  The  report  says  of 
those  rules: 

The  validity  of  the  transfer  is  at  the  beginning  subordinated  to  the 
accomplishment  of  certain  judicial  conditions,  having  for  their  object  to 
show  that  the  proprietor  has  been  divested  in  a  definitive  manner  and 
without  reserve  of  his  title  to  the  ship  over  which  he  should  preserve  no 
control.  If  these  conditions  have  not  been  fulfilled,  for  example,  if  the 
effect  of  the  transfer  has  been  subordinated  to  the  eventualities  of  the  war, 
the  transfer  is  presumed  to  have  taken  place  with  the  intention  of  shun- 
ning the  consequences  of  the  war,  and  it  is  declared  null. 

This  is  simple. 

Behold  the  diflBcult  point.  All  the  jiu-idical  conditions  have  been 
fulfilled;  but  the  captor  is  able  to  establish  that  the  transfer,  regular  in 
substance  and  in  form,  has  been  effected  with  a  view  to  escaping  the  con- 


'876  INTERNATIONAL  SUBJECTS 

sequences  which  the  enemy  character  entails.  Will  he  be  permitted  to 
make  this  proof  in  order  to  arrive  at  the  result  of  declaring  the  transfer 
void,  or  will  the  intention  of  avoiding  the  consequences  of  the  war  result 
only  from  the  failure  to  accomplish  the  juridical  conditions  ?  It  has 
appeared  doubtful  to  some.  It  has  been  recalled  that  the  condition  of  good 
faith  was  exacted  in  a  distinct  manner,  independently  of  juridical  condi- 
tions, and  that  so,  even  if  these  conditions  were  fidfilled,  one  could  prove 
that  the  sale  had  been  made  in  bad  faith;  but  how  is  this  to  be  understood  ? 
It  is  a  delicate  point.  The  captor  evidently  will  not  view  "  good  faith  "  in 
the  same  manner  as  the  vendor.  The  vendor  will  conader  that  he  acts 
honestly  if  he  divests  himself  regularly  and  definitively  of  his  ships,  be- 
cause he  does  not  wish  to  run  the  risk  of  losing  them  by  the  exercise  of  the 
right  of  prize.  The  captor  will  think  that  there  has  not  been  good  faith  in 
wishing  to  escape  from  the  consequences  of  war.  If  one  considers  the 
simple  juridical  interpretation,  it  seems,  indeed,  that  a  prize  court,  in  the 
presence  of  the  proposition  reported  above,  would  hold  the  transfer  valid 
because  the  juridical  conditions  had  been  fulfilled,  and  would  not  place 
itself  in  the  point  of  view  of  the  captor  in  order  to  consider  if  there  had 
been  good  or  bad  faith. 

The  majority  of  the  committee  did  not  accept  this  result,  and  accord- 
ingly, desiring  an  unequivocal  formula,  the  following  has  been  adopted: 

The  transfer  to  the  neutral  flag  of  an  enemy  ship  effected  before  the 
opening  of  the  hostilities  is  valid,  unless  it  should  be  established  that  the 
transfer  has  been  effected  with  a  view  to  escap>e  the  consequences  which 
the  enemy  character  entails. 

There,  Mr.  President,  is  3,  statement  as  plain  as  words  can 
make  it,  that  the  terms  which  are  used  in  the  rule  embraced 
in  the  declaration  were  substituted  for  the  words  "  good 
faith  "  that  our  delegates  were  pressing  for,  in  order  that  the 
intention  to  escape  the  consequences  of  the  right  of  capture 
should  be  a  separate  and  substantive  ground  for  invalidating 
the  transfer.  There  is  no  escape  from  that.  There  is  no  man 
here  who  could  state  with  greater  certainty  and  lucidity  the 
purpose  of  the  rule  than  it  is  stated  in  this  report  by  Mr. 
Renault,  the  greatest  of  living  teachers  of  international  law, 
and  the  oflBcial  adviser  of  the  French  foreign  oflSce. 

That  report  of  the  drafting  committee  was  adopted  by  the 
committee  of  the  whole;  it  was  made  by  the  committee  of 
the  whole  to  the  conference  ui  plenary  session,  and  it  was 


THE  SHIP  PURCHASE  BH^L  377 

adopted  by  the  conference.  If  the  conference  could  have 
heard  read  the  advice  given  to  our  State  Department  and 
laid  before  the  Senate  as  the  basis  of  this  legislation,  it  could 
not  have  controverted  the  conclusion  of  that  advice  in  more 
positive  and  more  unambiguous  terms.  I  can  find  no  words 
in  which  to  show  that  the  Solicitor  for  the  State  Department 
was  wrong  in  his  advice  so  clear  as  the  words  of  Mr.  Renault 
in  this  report. 

Mr.  Sutherland.  Mr.  President,  will  the  Senator  permit 
me  to  ask  him  a  question  ? 

The  Presiding  Officer.  Does  the  Senator  from  New 
York  yield  to  the  Senator  from  Utah  ? 

Mr.  Root.    Certainly. 

Mr.  Sutherland.  I  understand  the  Senator  from  New 
York  to  have  shown  that  in  addition  to  there  having  been 
payment  in  consideration  and  bona  fides,  in  the  usual  mean- 
ing of  that  term,  it  must  also  appear  that  the  ship  was  not 
transferred  in  order  that  the  capture  of  it  might  be  avoided. 
If  it  should  turn  out  that  the  vendor  transferred  it  with  that 
desire;  that  is,  that  he  transferred  it  in  order  that  it  might 
not  be  captured,  and  the  vendee  did  not  participate  in  that 
intention,  would  that  be  sufficient  to  meet  the  requirements  of 
the  rule,  or  does  it  require  that  there  should  be  a  participation 
on  the  part  of  both  the  vendor  and  the  vendee  in  the  desire  to 
avoid  capture  ? 

Mr.  Root.  Clearly,  Mr.  President,  the  motive  is  a  motive 
which  is  ascribed  to  the  vendor.  It  is  he  who  is  seeking  to 
take  his  ship  out  of  the  danger  of  capture;  it  is  he  who  will 
substitute  the  valuable  consideration  that  is  necessary  in 
place  of  the  vessel  that  he  cannot  use  except  at  the  risk  of 
capture.  The  vendee  prior  to  the  transaction  has  no  motive 
whatever  in  regard  to  the  ship.  It  is  the  owner  of  the  ship 
who  escapes  from  the  effect  that  the  enemy  character  of  the 
ship  brings  upon  it. 


378  INTERNATIONAL  SUBJECTS 

Mr.  Walsh.    Mr.  President  — 

The  Presiding  Officer.  Does  the  Senator  from  New 
York  yield  to  the  Senator  from  Montana  ? 

Mr.  Root.    Certainly. 

Mr.  Walsh.  The  distinguished  Senator  has  been  giving  us 
the  propositions  upon  this  important  question  submitted  by 
the  representatives  of  the  various  nations  in  response  to  the 
suggestion  of  the  British  Government.  As  I  recall,  a  state- 
ment came  from  France  as  well  as  from  Germany.  Will  the 
Senator  kindly  advise  us  whether  the  American  delegates 
stated  for  the  benefit  of  the  conference,  in  response  to  the 
invitation,  the  position  of  our  Government  ? 

Mr.  Root.  Mr.  President,  the  American  delegates  did 
not  upon  this  point  present  any  memorandum  as  to  the 
position  of  the  United  States  at  the  outset,  but  shortly  after 
the  discussion  began  they  did  present  a  statement  of  their 
views. 

Mr.  Walsh.  They  were  called  upon  to  make  a  formal 
statement  of  the  position  taken  by  their  Government,  to- 
gether with  the  authorities  which  they  desired  to  submit  in 
support  of  the  view  taken.  Will  the  Senator,  who  then  was 
Secretary  of  State,  advise  us  as  to  why  our  delegates  did  not 
comply  with  that  request  ? 

Mr.  Root.  Because  the  delegates  of  the  United  States  pre- 
sented, as  the  basis  of  their  position  upon  the  whole  range  of 
questions,  the  naval  war  code  and  discussions  of  the  Naval 
War  College,  and  it  was  deemed  wiser,  as  those  discussions 
covered  the  entire  range,  not  to  attempt  to  commit  them  to 
any  more  definite  and  precise  statement. 

Mr.  Walsh.  Are  we  to  understand  the  Senator,  then,  that 
they  did  not  make  a  definite  statement  on  any  of  the  seven 
propositions  submitted  by  the  Government  of  Great  Britain  ? 

Mr.  Root.  I  do  not  remember  about  the  others;  I  have 
not  examined  the  facts  as  to  them. 


I 


THE  SHIP  PURCHASE  BILL  379 

Mr.  Walsh.  Very  well.  Will  the  Senator  have  the  kind- 
ness to  advise  us  in  that  connection  if  the  delegates  from 
Austria-Hungary  made  a  statement  as  to  the  position  of  their 
Government,  and,  if  it  is  brief,  will  he  give  it  to  us  ? 

Mr.  Root.  They  made  a  statement,  and  the  representa- 
tives of  various  other  countries  made  statements.  The  dele- 
gates of  Austria-Hungary  made  a  statement  which  was  much 
nearer  in  its  view  to  the  position  of  Great  Britain  and  the 
United  States  than  it  was  to  the  position  of  France  and 
Russia. 

Mr.  Walsh.  My  recollection  is  that  the  delegates  from 
Austria-Hungary  made  a  statement  to  the  effect  that  the 
French  doctrine  was  entirely  obsolete  and  had  been  dis- 
r^arded  by  France. 

Mr.  Root.  They  did  not  go  so  far  as  that.  They  said  in 
their  statement  that  it  was  too  strict,  and  that  France  had 
modified  it  or  varied  from  it  in  the  war  of  1870;  but  we  can 
hardly  take  the  statement  of  Austria-Hungary  regarding  the 
position  of  France  as  against  the  formal  official  statement  of 
France  herself. 

Now,  I  want  to  give  credence  to  what  I  have  said  about 
what  happened  in  this  conference,  by  reading  from  a  dis- 
tinguished publicist,  a  professor  in  the  University  of  Vienna, 
Professor  von  Femeck,  who  was  one  of  the  Austrian  dele- 
gates to  the  conference  of  London.  I  read  from  an  article  by 
him  in  the  Handbuch  des  Volkerrechts,  for  1914.  He  says,  in 
chapter  5,  under  the  heading  "  Transfer  of  the  Flag  ": 

It  may  well  be  said  that  this  subject,  which  is  perhaps  of  much  less 
importance  to  neutrals  than  that  of  contraband  or  of  blockade,  was  the 
object  of  extraordinary  attention  on  the  part  of  the  conference. 

Omitting  some  irrelevant  remarks,  he  proceeds: 

For  some  time  it  seemed  as  though  an  unanimous  solution  of  this  ques- 
tion could  not  be  reached.  The  reason  for  this  was  that  the  interests  in 
the  subject  on  the  part  of  the  powers  represented  at  the  conference  were  of 


380  INTERNATIONAL  SUBJECTS 

a  widely  diflPering  character,  and  that  the  laws  and  the  customs  of  different 
states  are  dissimilar  in  important  respects.  The  United  States  of  America, 
France,  Italy,  the  Netherlands,  and  Russia  recognize  without  exception 
the  transfer  of  enemy  merchant  ships  to  a  neutral  flag  when  the  transfer  is 
completed  before  the  outbreak  of  the  war;  Germany,  France,  and  Russia 
declare  without  exception  as  null  and  void  any  transfer  of  flag  made  after 
the  outbreak  of  the  war  —  these  are  strict,  imcompromising  solutions  that 
may  indeed  be  understood  from  a  theoretical  point  of  view,  but  in  practice 
lead  to  difficulties. 

Several  of  the  powers,  among  them  Great  Britain,  the  American  Union, 
and  Germany  insisted  that  in  order  to  be  valid  in  law,  the  transfer  must 
have  been  intended  in  "  good  faith,"  and  according  to  the  American  inter- 
pretation "  good  faith  "  meant  not  fictitious,  while  the  other  jxjwers  im- 
derstood  by  "  good  faith  "  that  the  owner  himself  must  not  have  intended 
to  make  it  impossible  for  the  opponent  to  seize  the  ship. 

You  will  perceive  that  this  statement  answers  the  question 
put  by  the  Senator  from  Utah  [Mr.  Sutherland],  and  it  states 
in  few  words  just  what  Mr.  Renault's  report  says. 

The  other  powers  — 

says  Professor  von  Femeck  — 

understood  by  "  good  faith  "  that  the  owner  must  not  have  intended  to 
make  it  impossible  for  the  opponent  to  seize  the  ship. 

And  so,  as  Mr.  Renault's  report  said,  in  order  that  they 
might  have  an  unequivocal  expression,  because  there  were 
these  two  views  of  "  good  faith,"  they  put  in  a  rule  which 
states  in  so  many  words  the  second  view,  according  to  Pro- 
fessor von  Femeck,  that  *'  the  owner  must  not  have  intended 
to  make  it  impossible  for  the  opponent  to  seize  the  ship." 
He  proceeds: 

By  a  remarkable  argument,  the  American  delegation  controverted  the 
idea  that  the  shipowner  could  not  protect  himself  against  the  prize  law  by 
transferring  his  ship  to  a  neutral  flag.  .  .  . 

At  the  second  session  of  the  commission,  the  delegates  were  evidently 
eager  to  reach  an  agreement  that  would  avoid  the  harshness  of  the  con- 
sequent enforcement  of  a  principle:  The  transfer  of  the  flag  effected  before 
the  outbreak  of  the  war  should  be  regarded  as  vaUd,  the  transfer  after  the 
outbreak  of  the  war  as  invalid;  in  both  cases  the  presumption  might  be 


THE  SHIP  PURCHASE  BH^L  381 

refuted  by  counter  evidence.  In  the  course  of  the  third  meeting  of  the 
commission  the  question  regarding  the  elaboration  of  "  special  rules  regard- 
ing the  transfer  previous  and  the  transfer  subsequent  to  the  opening  of  the 
hostilities  "  was  referred  to  the  investigating  committee.  This  committee 
made  its  report  at  the  ninth  sessicm  of  the  commission.  The  rules  which 
this  committee  had  elaborated  met  the  idea  of  the  agreement,  but  did  not 
meet  with  the  full  approval  of  the  American  delegation,  for  the  reason  that 
they  did  not  take  into  accoimt  the  thought  developed  in  the  declaration 
referred  to  above.  In  order  to  ovCTCome  this  diflSculty,  the  representatives 
of  Great  Britain  proposed  at  the  eleventh  session  of  the  commission  "  in 
the  interest  of  neutral  commerce  "  to  add  the  following:  ".  .  .  there  shall 
be  absolute  presumption  of  validity,  if  the  transfer  was  eflfected  more  than 
thirty  days  before  the  opening  of  the  hostilities,  provided  it  is  in  absolute 
and  complete  conformity  with  the  laws  of  the  countries  interested,  and  has 
for  its  object  that  the  control  over  the  ship  and  over  the  earnings  resulting 
from  its  use  does  not  remain  in  the  same  hands  that  exercised  this  control 
before  the  transfer."  To  this  the  American  delegation  agreed;  it  yielded 
in  principle,  but  obtained  a  practically  important  concession:  The  ques- 
tion of  "  good  faith  "  might  be  raised  only  with  regard  to  such  ships  as 
were  transferred  within  the  last  thirty  days  before  the  outbreak  of  the  war. 

I  find,  Mr.  President,  that  Italy  upon  two  occasions  since 
the  conference  of  London  has  applied  the  rule.  In  the  Revue 
Generale  de  Droit  International  Public,  of  September-October, 
1913,  there  is  a  report  of  the  case  of  the  saihng  vessel  Vasilios 
and  of  the  sailing  vessel  Aghios  Georghios,  Greek  ships,  or 
ships  flying  the  Greek  flag,  which  had  been  Turkish  vessels 
at  the  opening  of  the  war  between  Italy  and  Turkey,  and  had 
been  sold  to  a  Greek  citizen,  admitted  to  Greek  registry,  and 
were  flying  the  Greek  flag.  The  ships  were  seized,  con- 
demned, and  sold.  So  that  we  may  add  Italy  to  the  powers 
which  have  adopted  this  rule  of  the  Declaration  of  London. 

Germany  has  put  herself  upon  the  same  basis,  in  terms 
which  leave  no  possible  doubt.  I  read  from  the  Prize  Ordi- 
nance of  September  30,  1909,  published  in  the  Law  Gazette 
of  the  Empire  for  1914,  No.  50: 

I  approve  the  accompanying  prize  ordinance,  and  direct  that  in  the 
enforcement  of  the  prize  law  my  fleet  commanders  shall,  during  the  war, 
proceed  in  accordance  with  the  provisions  of  the  prize  ordinance.    In  so  far 


382  INTERNATIONAL  SUBJECTS 

as  it  may  be  necessary  to  make  exception  thereto  in  special  cases,  you  shall 
make  proposition  to  that  end  to  me.  I  empower  you  to  give  such  inter- 
I»etation  to  this  ordinance  and  to  make  such  changes  thereto  as  may  be 
necessary,  provided  they  are  not  of  fimdamental  importance. 

(Signed)        Wilhelm. 
In  the  absence  of  the  Imperial  Counselor. 

(Countersigned)  v.  Tihpitz. 

Dated  September  30, 1909.  Promulgated  at  Berlin,  August  3, 

1914,  the  date  of  the  begmning  of  the  war. 

The  ordinance,  section  II,  is  as  follows: 

Enemy  ships  and  their  cargoes.  —  With  the  exceptions  specified  im- 
der  6  — 

which  are  not  relevant  here;  they  relate  to  cartel  ships, 
hospital  ships,  etc.  — 

With  the  exceptions  specified  imder  6,  enemy  ships  are  subject  to 
capture. 

Ships  are  adjudged  enemy  or  neutral  ships  by  the  flag  they  are  entitled 
to  carry. 

The  flag  which  a  ship  is  entitled  to  carry  is  determined  in  accordance 
with  the  flag  law  of  almost  all  maritime  states  from  an  official  document 
that  any  merchant  ship  must  have  on  board. 

If  the  nationality  of  a  ship  cannot  be  readily  established,  and  especially 
if  the  document  required  in  accordance  with  the  flag  law  of  the  respective 
state  is  not  in  evidence,  then  the  ship  shall  be  considered  as  an  enemy  ship. 

Ships  that  after  the  outbreak  of  the  hostilities  have  been  transferred 
from  the  enemy  to  the  neutral  flag  are  also  to  be  considered  as  enemy 
ships  — 

(a)  If  the  commander  is  not  convinced  that  the  transfer  would  have 
followed,  even  if  war  had  not  broken  out,  as,  for  instance,  by  succession,  or 
by  virtue  of  a  construction  contract. 

(b),  (c),  and  (d)  pertain  to  matters  which  are  not  relevant. 

That  points  to  the  German  imderstanding  of  the  rule;  and 
I  will  say  that  in  the  final  report  of  the  London  conference, 
which  is  printed  in  this  document  containing  the  solicitor's 
opinion,  an  illustration  is  given  of  the  meaning  of  the  rule  — 
that  is,  for  instance,  "  in  case  of  inheritance." 

Applying  these  illustrations,  the  rule  becomes  plain.  The 
ordinary  trade  in  ships  is  not  to  be  prevented.    Trade  in  the 


THE  SHIP  PURCHASE  BH^L  383 

ordinary  course  of  business  is  not  to  be  prevented.  The  ordi- 
nary devolution  of  property  is  not  to  be  interfered  with.  If 
the  owner  of  a  ship  belonging  to  a  belligerent  dies,  the  prop- 
erty may  devolve  upon  a  neutral.  The  rule  does  not  pre- 
vent it,  and  the  neutral  flag  will  protect  it.  If  you  or  I  have 
ordered  a  ship  from  a  shipyard  in  Germany  or  Great  Britain, 
and  the  ship  is  constructed,  and  we  take  it,  if  the  ship  was 
ordered  before  the  war  and  the  transfer  was  made  after  the 
war,  that  transfer  is  manifestly  in  the  ordinary  course  of  busi- 
ness, as  the  German  rule  says,  under  a  construction  contract. 
But  none  of  these  great  nations  will  permit  a  citizen  of  an 
enemy  to  rob  it  of  its  prize  by  transferring  to  a  neutral  the 
ships  it  is  entitled  to  capture  on  the  high  seas. 

Mr.  President,  we  are  not  bound  by  that;  but  that  is  the 
state  of  the  law  of  England,  France,  Germany,  Russia,  Italy, 
and  I  presume  the  alHes  of  these  countries,  and  that  is  what 
we  have  to  run  up  against  if  we  buy  these  belligerent  ships; 
for  of  course  no  one  will  contend  for  a  moment  that  the  Ham- 
burg-American Line  or  the  North  German  Lloyd  Line  is  sell- 
ing its  ships  in  the  ordinary  course  of  business,  or  for  any 
reason  other  than  that  they  cannot  go  out  on  the  ocean  and 
carry  on  their  business;  and  no  one  would  doubt  it  if  we  were 
to  buy  a  British  ship  and  put  it  in  the  Bremen  trade  or  the 
Hamburg  trade.  There  can  be  no  purchase  now  of  ships  that 
have  been  lying  idle  six  months,  under  the  conditions  of  this 
war,  that  is  not  stamped  with  a  purpose  that  invalidates  the 
transfer  under  the  rule  of  the  Declaration  of  London  equally 
with  those  old  and  more  severe  rules  which  were  presented 
at  the  beginning  of  the  conference. 

But,  Mr.  President,  I  have  been  considering  this  subject  as 
if  an  American  citizen  were  to  buy.  I  have  said  about  that, 
that  we  are  not  bound  by  the  rules  of  these  countries.  We 
are  at  liberty  to  say:  "  Our  rule  is  different,  and  we  insist 
upon  its  being  applied."    I  have  always  beUeved  in  that  rule, 


384  INTERNATIONAL  SUBJECTS 

sir.  I  believe  in  it  now.  I  instructed  our  delegates  to  the 
Second  Hague  Conference  to  urge  upon  the  conference  the 
immunity  of  all  private  property  at  sea  in  time  of  war.  Our 
delegates  fought  loyally  for  the  rule  which  our  courts  applied, 
and  which  is  in  furtherance  of  that  beneficent  and  liberal  rule. 
But  there  is  the  law  of  Europe,  and  against  that  we  will  come; 
and  I  repeat,  it  is  their  law  that  will  be  enforced  in  the  treat- 
ment of  this  subject.  We  should  be  left  to  protest  and  at- 
tempt to  get  them  or  some  court  of  arbitration  to  abandon 
their  rule  and  adopt  ours.  How  easy  it  would  be,  sir,  for  us 
to  bring  that  about  through  the  voluntary  action  of  any 
country  or  the  action  of  any  court  of  arbitration,  in  view  of 
the  fact  that  they  have  adopted  the  rule  of  the  Declaration  of 
London  to  which  our  delegates  finally  agreed,  to  which  our 
Government  agreed  in  sending  it  to  the  Senate  for  rati- 
fication, and  to  which  the  Senate  agreed  by  advising  and 
consenting  to  the  ratification,  I  shall  not  discuss. 

But,  says  the  Secretary  of  the  Treasury,  the  Government 
of  the  United  States  could  not  be  involved  in  any  difficulty 
if  it  were  to  buy  these  ships  —  that  is  to  say,  if  this  proposed 
corporation  were  to  buy  the  ships: 

Some  timid  people  have  argued  that  if  the  Government  is  interested  as  a 
stockholder  in  a  shipping  company,  and  a  ship  of  such  company  should  be 
seized  by  a  belligerent  and  brought  into  a  prize  court,  the  sovereignty  of 
the  Government  would  be  involved.  There  is  no  ground  whatever  for  this 
view. 

I  am  sorry  to  write  myself  down  in  the  category  of  timid 
people,  but  I  must,  for  I  do  not  agree  with  the  Secretary  of 
the  Treasury  in  the  idea  that  there  is  no  ground  whatever  for 
this  view;  and  I  am  filled  with  apprehension  by  the  idea  of 
putting  these  vast  powers  into  the  hands  of  a  man  who  thinks 
there  is  no  ground  whatever  for  that  view. 

A  question  was  put  to  the  counselor  of  the  State  Depart- 
ment, Mr.  Lansing,  before  the  Committee  on  Naval  Affairs 


I 
I 


THE  SHIP  PURCHASE  BH^L  385 

of  the  House.    I  read  from  the  hearings  on  Senate  Bill  5259 
and  H.  R.  5980,  dated  August  20,  1914: 

Mr.  Williams.  The  first  question  that  we  want  information  on,  as  a 
legal  proposition,  is  the  liability  that  would  attach  to  this  Government  if 
the  Government  itself  was  operating  a  line  of  steamships  engaged  in  the 
transportation  of  goods  to  South  America  and  to  European  countries  com- 
pared with  the  liability  of  a  steamship  company  or  an  individual  engaged 
in  the  same  business.    Can  you  give  us  some  information  along  these  lines  ? 

Mr.  Lansing.  I  suppose  you  refer  to  neutrality  and  to  the  question  of 
contraband  ? 

Mr.  Williams.    Yes,  sir. 

Mr.  Lansing.  I  think  that  the  transportation  of  contraband  to  a  bellig- 
erent port  in  a  public  ship  of  the  United  States  would  go  much  further 
than  the  mere  matter  of  liabiUty,  and  that  it  would  be  regarded  as  an 
unneutral  act. 

Mr.  Williams.  That  the  United  States  transporting  goods  to  English, 
French,  or  German  ports  would  be  a  violation  of  neutrality  ? 

Mr.  Lansing.    I  think  it  might  be  so  regarded. 

That  is  what  we  have  to  deal  with.  That  is  what  the  Secre- 
tary of  the  Treasury  does  deal  with  in  the  words  I  have  read 
from  him.    He  says : 

If  the  Government  operated  ships  outright,  just  as  it  operates  the  vessels 
of  our  navy,  an  awkward  situation  of  this  character  might  arise;  but 
where  a  nation  is  merely  a  stockholder,  or  the  sole  stockholder,  in  a  private 
corporation,  its  sovereignty  is  not  and  cannot  be  directly  involved  if  the 
ships  of  such  a  corporation  become  the  subjects  of  litigation  in  a  prize 
court  concerning  any  issue  which  does  not  involve  the  Government  itself. 
The  Government  would  stand  in  relation  to  such  a  corporation  exactly 
as  any  individual  stockholder  does  to  a  corp)oration  in  which  he  is 
interested.  A  suit  against  the  corjwration  does  not  necessarily  involve 
the  shareholders. 

Mr.  President,  that  is  not  the  law  as  it  has  been  understood 
by  the  Government  of  the  United  States,  or  as  it  has  been  ap- 
plied. In  the  Delagoa  Bay  case  our  Government  went 
straight  through  the  legal  fiction  of  a  Portuguese  corporation 
and  asserted  and  enforced  the  rights  of  American  citizens  who 
were  stockholders  of  that  corporation,  precisely  as  if  they  had 
been  the  owners  themselves.    The  British  Government  did 


386  INTERNATIONAL  SUBJECTS 

the  same  thing  in  the  same  case.  Time  and  again  the  rule 
which  was  established  in  that  case  has  been  applied  to  the 
affairs  of  these  legal  fictions  which  give  to  the  real  owners  of 
property  the  municipal  right  of  succession  and  limitation  of 
liability  and  the  use  of  a  corporate  seal,  etc.  Of  course,  Mr. 
President,  it  stands  to  reason  that  a  mimicipal  statute  giving 
to  A  and  B  and  C  rights  to  sue  and  be  sued  in  corporate  form 
and  to  have  limitation  of  liability  and  to  act  through  a  seal, 
is  no  concern  of  another  Government  if  A  and  B  and  C, 
through  that  form,  have  injured  or  affected  the  rights  of  that 
other  Government.  The  idea  is  idle  and  baseless  that  the 
Government  of  the  United  States,  by  the  exercise  of  its  vast 
national  power,  can  wrest  enormous  funds  from  its  people  by 
taxation,  can  use  those  funds  to  withdraw  from  Germany's 
right  of  capture  British  ships  and  from  France's  and  Great 
Britain's  right  of  captiu-e  of  German  ships,  and  say:  "  I  can- 
not be  called  to  account  because  I  have  made  a  statute  under 
which  I  protect  myself  by  a  legal  fiction,  calling  myself  a 
trading  corporation."  Ah,  no!  the  real  and  serious  affairs 
of  this  world  are  not  conducted  in  that  way.  Whatever  we 
do  through  this  corporation  that  we  create  and  own,  we  do 
as  a  government,  and  are  responsible  for  as  a  government. 

In  the  case  of  the  Parlement  Beige,  which  was  referred  to 
the  other  day  by  the  Senator  from  Massachusetts  [Mr. 
Lodge],  the  courts  of  England  were  called  upon  to  consider 
the  effects  of  government  ownership.  The  Government  of 
Belgium  owned  a  boat  plying  across  the  Channel  from  Ostend 
to  some  British  port,  much  like  our  municipal  ferries,  and  the 
question  was  raised,  whether  being  a  trading  boat  engaged 
solely  in  trading  operations,  it  was  to  be  treated  as  subject 
to  the  laws  relating  to  trading  ships  or  was  to  have  the  im- 
munities which  pertained  to  government  ships.  The  court 
below  held  that  it  was  subject  to  the  laws  relating  to  trading 
ships.    The  court  above  reversed  the  decision,  and  held  that. 


THE  SHIP  PURCHASE  BHJ.  387 

being  the  property  of  the  Government  of  Belgium,  it  was 
immune  from  the  English  laws  relating  to  trading  ships.  The 
reality  of  things,  sir,  prevents  us  from  escaping  by  any  pos- 
sibility from  responsibility  for  the  use  of  our  national  power 
to  withdraw  any  belHgerent  ships  that  we  may  now  purchase 
from  the  right  of  capture  on  the  part  of  the  other  belliger- 
ents, whether  we  proceed  by  the  fiction  of  a  corporation  or 
directly. 

There  is  only  one  possible  escape  from  the  condemnation 
and  forfeiture  of  a  prize  court  for  every  ship  of  this  kind  that 
is  purchased.  That  is  the  possible  protection  of  the  sov- 
ereignty of  the  United  States,  preferring  to  occupy  the 
position  of  violating  neutrality  rather  than  to  submit  to 
condemnation. 

What  is  the  meaning,  sir,  of  the  violation  of  neutrality  ? 
It  means  taking  sides  in  the  controversy.  It  means  helping 
one  belligerent  against  another.  It  means  that  after  all  our 
proclamations  and  our  efforts,  we  abandon  the  attempt  to  be 
neutral,  and  we  take  sides  in  the  great  conflict;  and  we  can- 
not stop.  We  cannot  measure  the  number  of  steps.  One  un- 
neutral act  by  us  will  lead  to  acts  by  others  that  will  compel 
further  acts  by  us,  more  acts  by  others  and  more  by  us  and 
more  by  them,  until  we  are  in  the  thick  of  the  controversy. 

Remember,  sir,  the  condition  of  the  world  today.  I  am 
arguing  against  the  Government  of  the  United  States  buying, 
not  a  ship,  but  an  international  quarrel  with  every  ship. 
Somebody  said  to  me:  "  It  is  buying  a  claim,  not  a  ship." 
No.  It  is  buying  a  quarrel,  not  a  ship;  and  I  say,  remember 
the  condition  of  the  world.  Recall  to  your  minds  all  that  you 
have  read  during  the  past  six  months  of  the  condition  of  feel- 
ing on  the  part  of  the  people  in  all  these  countries  —  Eng- 
land, Belgium,  France,  Germany,  Russia,  Servia,  all  of  them 
—  tense  to  the  highest  degree,  in  that  condition  of  exaltation 
which  holds  prudence  for  naught. 


388  INTERNATIONAL  SUBJECTS 

Why,  sir,  we  were  ready  to  fight,  from  Mason  and  Dixon's 
line  to  Canada,  on  the  instant,  when  Mason  and  Slidell  were 
taken  from  the  Trentf  and  Great  Britain  mobilized  her  fleet. 
It  was  ruin  for  the  North  if  we  fought  —  certain  ruin.  We 
could  not  stand  against  the  gallant  South  and  against  mighty 
England.  Our  blockade  would  be  gone;  but  we  were  ready 
to  fight,  because  every  heart  of  the  North  was  full  of  emotion, 
and  every  nature  was  tense  with  feeling,  and  we  cared  naught 
for  prudence.    That  is  Europe  today. 

If  we  are  going  to  maintain  our  neutrality,  we  must  hold 
close  to  it,  and  keep  out  of  all  needless  causes  of  controversy. 
And  let  us  remember  ourselves.  We  have  kept,  hitherto,  a 
united  America.  We  have  stood  behind  the  President  in  his 
neutrahty  proclamations.  Here  and  there  fault  has  been 
found  on  one  side  or  the  other,  but  we  have  stood  by  him; 
but  do  not  forget  that  there  are  here  milHons  of  Germans  who 
love  their  Fatherland,  and  I  honor  them  for  it.  I  should 
think  less  of  them  if  their  natures  were  not  awakened  by  the 
peril  and  the  stress  of  the  land  that  gave  birth  to  them  and 
their  fathers.  They  are  alive  and  tense.  There  are  millions 
of  men  of  English  blood,  bom  and  bred  with  a  love  for  Anglo- 
Saxon  liberty  and  the  laws  that  we  inherited  from  England. 
Do  not  imagine  that  they  are  not  thinking  and  feeling,  and 
if  you  precipitate  this  country  into  a  controversy  where 
Europe  feels  and  acts  upon  the  belief  that  we  have  taken 
sides,  we  shall  rend  ourselves. 

No;  the  only  safe  course  is  to  keep  out  of  unnecessary 
controversial  questions  with  as  great  care  and  conserva- 
tism and  caution  as  possible,  for  we  never  can  tell  where  a 
controversy  will  lead  us. 

Mr.  President,  I  deeply  regret  that  any  shade  of  party  poli- 
tics has  fallen  upon  the  consideration  of  this  measure.  We 
have  in  the  Senate  long  felt  that  it  was  our  duty  to  lay  aside 
party  when  we  reach  the  water's  edge.    We  have  considered 


THE  SHIP  PURCHASE  BH^L  389 

the  terms  of  treaties  and  advised  the  President,  of  whatever 
party,  in  accordance  with  the  best  of  our  judgment  and  our 
conscience.  When  we  have  reached  the  water's  edge  we  have 
said  we  leave  party. 

This  bill  proposes  a  business  which  is  all  beyond  the  water's 
edge  —  international  in  its  aspect  and  in  its  purpose.  It  is 
international  at  a  time  of  intense  emotion  and  certain  con- 
troversy. I  wish  we  could  have  considered  it  —  I  wish  we 
could  consider  it  now  —  as  Americans  earnest  for  the  peace 
and  prosperity  of  our  country,  forgetful  of  party. 

Mr.  President  and  Senators,  there  is  no  crime  against  our 
country  so  wicked  as  the  crime  of  conducting  our  interna- 
tional relations  with  a  view  to  party  popularity.  The  two 
considerations  are  incompatible,  and  cannot  exist  at  the  same 
time  in  any  mind.  He  who  has  charge  of  our  foreign  affairs 
must  deal  with  them  regardless  of  the  effect  upon  his  political 
future  or  his  party's  advantage,  or  he  cannot  deal  with  them 
as  the  public  safety  demands.  The  man  who  is  considering 
his  political  future  and  his  party's  advantage  should  keep  out 
of  foreign  relations.    The  two  cannot  coexist. 

One  incident  for  which  I  impute  blame  to  no  one  has 
recently  happened  which  illustrates  what  I  say.  The  note 
that  was  sent  by  our  State  Department  to  Great  Britain  a 
short  time  ago  regarding  the  search  for  contraband,  en- 
deavoring to  remedy  serious  evils  of  delay  and  perhaps  in- 
difference in  making  the  search  for  contraband,  which  is 
admittedly  the  right  of  belligerents,  was  a  moderate,  a  rea- 
sonable, and  a  proper  note.  No  one  in  the  world  had  a  right 
to  find  fault  with  it.  But  before  the  note  was  delivered  in 
Great  Britain  and  before  it  was  made  public  here,  the  news- 
papers were  filled  by  somebody,  I  do  not  know  whom,  with 
an  account  of  it,  far,  far  from  the  truth,  with  an  account  of  it 
which  pictured  the  Administration  as  standing  up  against 
frightful  odds  and  dreadful  danger  for  a  view  of  American 


390  INTERNATIONAL  SUBJECTS 

rights  which  no  serious  student  of  international  law  ever 
thought  of  asserting  and  which  the  note  did  not  assert. 
Both  this  country  and  England  were  filled  with  an  erron- 
eous view  of  that  note  and  that  erroneous  view  persists.  It 
could  have  been  given  for  no  other  purpose  than  a  political 
piupose  and  it  was  a  crime  against  the  American  people 
and  against  the  peace  of  the  world  to  misrepresent  it. 

I  will  not  proceed.  I  will  not  specify  or  illustrate  further. 
I  will  close  what  I  have  to  say  by  expressing  the  most  fervent 
hope  that  we  may  deal  both  in  this  great  deliberative  body 
and  in  the  executive  department  of  the  Government  with  this 
serious,  grave  question  as  lovers  of  our  country,  with  all  the 
wisdom  and  experience  and  ability  that  we  can  bring  to  our 
coimtry's  service. 


THE  OUTLOOK  FOR  INTERNATIONAL  LAW 

PRESIDENTIAL  ADDRESS  AT  THE  NINTH  ANNUAL  MEETING 

OF  THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  DECEMBER  28,  1915 

THE  incidents  of  the  great  war  now  raging  affect  so 
seriously  the  very  foundations  of  international  law  that 
there  is  for  the  moment  but  little  satisfaction  to  the  student 
of  that  science  in  discussing  specific  rules.  Whether  or  not 
Sir  Edward  Carson  went  too  far  in  his  recent  assertion  that 
the  law  of  nations  has  been  destroyed,  it  is  manifest  that  the 
structure  has  been  rudely  shaken.  The  barriers  that  states- 
men and  jurists  have  been  constructing  laboriously  for  three 
centuries  to  limit  and  direct  the  conduct  of  nations  toward 
each  other,  in  conformity  to  the  standards  of  modem  civili- 
zation, have  proved  too  weak  to  confine  the  tremendous 
forces  liberated  by  a  confiict  which  involves  almost  the  whole 
mihtary  power  of  the  world  and  in  which  the  destinies  of 
nearly  every  civilized  state  outside  the  American  continents 
are  directly  at  stake. 

The  war  began  by  a  denial  on  the  part  of  a  very  great 
power  that  treaties  are  obhgatory  when  it  is  no  longer  for  the 
interest  of  either  of  the  parties  to  observe  them.  The  denial 
was  followed  by  action  supported  by  approximately  one 
half  the  military  power  of  Europe  and  is  apparently  approved 
by  a  great  nimGiber  of  learned  students  and  teachers  of  inter- 
national law,  citizens  of  the  coimtries  supporting  the  view. 
This  position  is  not  an  application  of  the  doctrine  rebus  sic 
stantibus  which  justifies  the  termination  of  a  treaty  under 
circumstances  not  contemplated  when  the  treaty  was  made 
so  that  it  is  no  longer  justly  applicable  to  existing  conditions. 
It  is  that  under  the  very  circumstances  contemplated  by  the 

891 


392  INTERNATIONAL  SUBJECTS 

treaty  and  under  the  conditions  for  which  the  treaty  was 
intended  to  provide  the  treaty  is  not  obhgatory  as  against 
the  interest  of  the  contracting  party. 

This  situation  naturally  raises  the  question  whether  exec- 
utory treaties  will  continue  to  be  made  if  they  are  not  to  be 
binding,  and  requires  consideration  of  a  system  of  law  under 
which  no  conventional  obligations  are  recognized.    The  par- 
ticular treaty  which  was  thus  set  aside  was  declaratory  of  the 
general  rule  of  international  law  respecting  the  inviolability 
of  neutral  territory;  and  the  action  which  ignored  the  treaty 
also  avowedly  violated  the  rule  of  law,  and  the  defense  is 
that  for  such  a  violation  of  the  law  the  present  interest  of  a 
sovereign  state  is  justification.    It  is  plain  that  the  applica- 
tion of  such  a  principle  to  a  matter  of  major  importance  at 
the  beginning  of  a  long  conflict  must  inevitably  be  followed 
by  the  setting  aside  of  other  rules  as  they  are  found  to  inter- 
fere with  interest  or  convenience;  and  that  has  been  the  case 
during  the  present  war.    Many  of  the  rules  of  law  which  the 
world  has  regarded  as  most  firmly  estabhshed  have  been 
completely  and  continuously  disregarded,  in  the  conduct  of 
war,  in  dealing  with  the  property  and  lives  of  civihan  non- 
combatants  on  land  and  sea  and  in  the  treatment  of  neutrals. 
Alleged  violations  by  one  belligerent  have  been  asserted  to 
justify  other  violations  by  other  belligerents.     The  art  of 
war  has  been  developed  through  the  invention  of  new  instru- 
ments of  destruction  and  it  is  asserted  that  the  changes  of 
conditions  thus  produced  make  the  old  rules  obsolete. 

It  is  not  my  purpose  at  this  time  to  discuss  the  right  or 
wrong  of  these  declarations  and  actions.  Such  a  discussion 
would  be  quite  inadmissible  on  the  part  of  the  presiding  officer 
of  this  meeting.  I  am  stating  things  which  whether  right  or 
wrong  have  unquestionably  happened,  as  bearing  upon  the 
branch  of  jurisprudence  to  which  this  Society  is  devoted.  It 
seems  that  if  the  violation  of  law  justifies  other  violations, 


OUTLOOK  FOR  INTERNATIONAL  LAW         393 

then  the  law  is  destroyed  and  there  is  no  law;  that  if  the  dis- 
covery of  new  ways  of  doing  a  thing  prohibited  justifies  the 
doing  of  it,  then  there  is  no  law  to  prohibit.  The  basis  of  such 
assertions  really  is  the  view  that  if  a  substantial  belligerent  in- 
terest for  the  injury  of  the  enemy  come  in  conflict  with  a  rule 
of  law,  the  rule  must  stand  aside  and  the  interest  must  prevail. 
If  that  be  so  it  is  not  difficult  to  reach  the  conclusion  that  for 
the  present  at  all  events  in  all  matters  which  affect  the  exist- 
ing struggle,  international  law  is  greatly  impaired.  Nor  can 
we  find  much  encouragement  to  believe  in  the  binding  force 
of  any  rules  upon  nations  which  observe  other  rules  only  so 
far  as  their  interest  at  the  time  prompts  them.  Conditions 
are  always  changing  and  a  system  of  rules  which  ceases  to 
bind  whenever  conditions  change  should  hardly  be  con- 
sidered a  system  of  law.  It  does  not  follow  that  nations  can 
no  longer  discuss  questions  of  right  in  their  diplomatic  inter- 
course, but  upon  such  a  basis  it  seems  quite  useless  to  appeal 
to  the  authority  of  rules  already  agreed  upon  as  just  and 
right  and  to  their  compelling  effect  because  they  have  been 
already  agreed  upon. 

When  we  recall  Mansfield's  familiar  description  of  inter- 
national law  as  "  foimded  upon  justice,  equity,  convenience, 
the  reason  of  the  thing,  and  confirmed  by  long  usage,"  we 
may  well  ask  ourselves  whether  that  general  acceptance 
which  is  necessary  to  the  establishment  of  a  rule  of  interna- 
tional law  may  be  withdrawn  by  one  or  several  nations  and 
the  rule  be  destroyed  by  that  withdrawal  so  that  the  usage 
ceases  and  the  whole  subject  to  which  it  relates  goes  back  to 
its  original  status  as  matter  for  new  discussion  as  to  what  is 
just,  equitable,  convenient  and  reasonable. 

When  this  war  is  ended,  as  it  must  be  some  time,  and  the 
foreign  offices  and  judicial  tribunals  and  publicists  of  the 
world  resume  the  peaceable  discussion  of  international  rights 
and  duties,  they  will  certainly  have  to  consider  not  merely 


394  INTERNATIONAL  SUBJECTS 

what  there  is  left  of  certam  specific  rules,  but  also  the  funda- 
mental basis  of  obligation  upon  which  all  rules  depend.  The 
civilized  world  will  have  to  determine  whether  what  we  call 
international  law  is  to  be  continued  as  a  mere  code  of  eti- 
quette or  is  to  be  a  real  body  of  laws  imposing  obhgations 
much  more  definite  and  inevitable  than  they  have  been 
heretofore.  It  must  be  one  thing  or  the  other.  Although 
foreign  offices  can  still  discuss  what  is  fair  and  just  and  what 
is  expedient  and  wise,  they  cannot  appeal  to  law  for  the 
decision  of  disputed  questions  unless  the  appeal  rests  upon 
an  obligation  to  obey  the  law.  What  course  will  the  nations 
follow  ? 

Vague  and  uncertain  as  the  future  must  be,  there  is  some 
reason  to  think  that  after  the  terrible  experience  through 
which  civiKzation  is  passing,  there  will  be  a  tendency  to 
strengthen  rather  than  abandon  the  law  of  nations.  What- 
ever the  result  may  be,  the  world  will  have  received  a  dread- 
ful lesson  of  the  evils  of  war.  The  sacrifice  of  miUions  of  lives, 
miUions  homeless  and  in  poverty,  industry  and  commerce 
destroyed,  overwhelming  national  debts,  —  all  will  naturally 
produce  a  strong  desire  to  do  something  that  will  prevent 
the  same  thing  happening  again. 

While  the  war  has  exhibited  the  inadequacy  of  interna- 
tional law,  so  far  as  it  has  yet  developed,  to  curb  those  govern- 
mental policies  which  aim  to  extend  power  at  all  costs,  it  has 
shown  even  more  clearly  that  little  reliance  can  be  placed 
upon  unrestrained  human  nature,  subject  to  specific  tempta- 
tion, to  commit  forcible  aggression  in  the  pursuit  of  power 
and  wealth.  It  has  shown  that  where  questions  of  conduct 
are  to  be  determined  under  no  constraint  except  the  circum- 
stances of  the  particular  case,  the  acquired  habits  of  civiliza- 
tion are  weak  as  against  the  powerful,  innate  tendencies 
which  survive  from  the  countless  centuries  of  man's  struggle 
for  existence  against  brutes  and  savage  foes.    The  only  means 


OUTLOOK  FOR  INTERNATIONAL  LAW    395 

yet  discovered  by  man  to  limit  those  tendencies  consist  in 
the  establishment  of  law,  the  setting  up  of  principles  of 
action  and  definite  rules  of  conduct  which  cannot  be  vio- 
lated by  the  individual  without  injury  to  himself.  That 
is  the  method  by  which  the  wrongs  naturally  flowing  from 
individual  impulse  within  the  state  have  been  confined 
to  narrow  limits.  That  analogy,  difficult  as  it  is  to  maintain 
in  view  of  the  differences  between  the  individual  who  is  sub- 
ject to  sovereignty  and  the  nation  which  is  itself  sovereign, 
indicates  the  only  method  to  which  human  experience  points 
to  avoid  repeating  the  present  experience  of  these  years  of 
war  consistently  with  the  independence  of  nations  and  the 
hberty  of  individuals.  The  Pax  Romana  was  effective  only 
because  the  worid  was  subject  to  Rome.  The  Christian 
Church  has  been  lu-ging  peace  and  good-will  among  men  for 
nineteen  centuries,  and  still  there  is  this  war.  Concerts  of 
Europe  and  aUiances  and  ententes  and  skillful  balances  of 
power  all  lead  ultimately  to  war.  Conciliation,  good-will, 
love  of  peace,  human  sympathy,  are  ineffective  without  in- 
stitutions through  which  they  can  act.  Only  the  possibility 
of  establishing  real  restraint  by  law  seems  to  remain  to  give 
effect  to  the  undoubted  will  of  the  vast  majority  of  mankind. 

In  the  effort  to  arrange  the  affairs  of  the  worid  so  that  they 
will  not  lead  to  another  great  catastrophe,  men  will  therefore 
turn  naturally  towards  the  re-estabHshment  and  strengthen- 
ing of  the  law  of  nations.  How  can  that  be  done  ?  How  can 
the  restraints  of  law  be  made  more  effective  upon  nations  ? 

It  is  not  difficult  to  suggest  some  things  which  will  tend 
in  that  direction. 

Laws  to  be  obeyed  must  have  sanctions  behind  them;  that 
is  to  say,  violations  of  them  must  be  followed  by  punishment. 
That  punishment  must  be  caused  by  power  superior  to 
the  law-breaker;  it  cannot  consist  merely  in  the  possibility 
of  being  defeated  in  a  conflict  with  an  enemy;    otherwise 


396  INTERNATIONAL  SUBJECTS 

there  would  be  no  law  as  between  the  strong  and  the  weak. 
Many  states  have  grown  so  great  that  there  is  no  power 
capable  of  imposing  punishment  upon  them  except  the  power 
of  collective  civilization  outside  of  the  offending  state.  Any 
exercise  of  that  power  must  be  based  upon  public  opinion.  It 
cannot  rest  merely  upon  written  agreements  or  upon  the 
accidental  dictates  of  particular  interests.  It  must  proceed 
from  general,  concurrent  judgment  and  condemnation. 
When  that  exists,  punishment  may  be  inflicted  either  by  the 
direct  action  of  governments,  forcible  or  otherwise,  or  by  the 
terrible  consequences  which  come  upon  a  nation  that  finds 
itself  without  respect  or  honor  in  the  world  and  deprived  of 
the  confidence  and  good-will  necessary  to  the  maintenance  of 
intercourse.  Without  such  an  opinion  behind  it,  no  punish- 
ment of  any  kind  can  be  imposed  for  the  violation  of  inter- 
national law. 

For  the  formation  of  such  a  general  opinion,  however, 
questions  of  national  conduct  must  be  reduced  to  simple  and 
definite  form.  Occasionally  there  is  an  act  the  character  of 
which  is  so  clear  that  mankind  forms  a  judgment  upon  it 
readily  and  promptly,  but  in  most  cases  it  is  easy  for  the 
wrongdoer  to  becloud  the  issue  by  assertion  and  argument 
and  to  raise  a  complicated  and  obscure  controversy  which 
confuses  the  judgment  of  the  world.  There  is  but  one  way 
to  make  general  judgment  possible  in  such  cases.  That  is  by 
bringing  them  to  the  decision  of  a  competent  court  which 
will  strip  away  the  irrelevant,  reject  the  false,  and  declare 
what  the  law  requires  or  prohibits  in  the  particular  case. 
Such  a  court  of  international  justice  with  a  general  obligation 
to  submit  all  justiciable  questions  to  its  jurisdiction  and  to 
abide  by  its  judgment  is  a  primary  requisite  to  any  real 
restraint  of  law. 

When  we  come  to  consider  the  working  of  an  international 
coiui:,  however,  we  are  forced  to  realize  that  the  law  itself  is 


OUTLOOK  FOR  INTERNATIONAL  LAW         397 

in  many  respects  imperfect  and  uncertain.  There  is  no  legis- 
lature to  make  laws  for  nations.  There  is  no  body  of  judicial 
decisions  having  the  effect  of  precedent  to  declare  what  inter- 
national laws  are.  The  process  of  making  international  law 
by  usage  and  general  acceptance  has  been  necessarily  so 
slow  that  it  has  not  kept  pace  with  the  multiplying  questions 
arising  in  the  increasing  intercourse  of  nations.  In  many 
fields  of  most  fruitful  controversy  different  nations  hold 
tenaciously  to  different  rules,  as,  for  recent  example,  upon 
the  right  of  expatriation,  upon  the  doctrine  of  continuous 
voyages,  upon  the  right  to  transfer  merchant  vessels  after 
the  outbreak  of  a  war.  Yet  any  attempt  to  maintain  a  court 
of  international  justice  must  fail  unless  there  are  laws  for  the 
court  to  administer.  Without  them  the  so-called  court  would 
be  merely  a  group  of  men  seeking  to  impose  their  personal 
opinions  upon  the  states  coming  before  them.  The  lack  of  an 
adequate  system  of  law  to  be  applied  has  been  the  chief  ob- 
stacle to  the  development  of  a  system  of  judicial  settlement  of 
international  disputes.  This  is  well  illustrated  by  the  history 
of  the  convention  for  an  international  prize  coiu±  adopted  by 
the  Second  Hague  Conference.  The  Conference  agreed  to  es- 
tablish such  a  court  and  provided  in  article  seven  of  the  treaty 
that  in  the  absence  of  special  treaty  provisions  governing  the 
case  presented  "  the  Court  shall  apply  the  rules  of  inter- 
national law.  If  no  generally  recognized  rule  exists,  the  Court 
shall  give  judgment  in  accordance  with  the  general  principles 
of  justice  and  equity."  When  the  question  of  ratifying  this 
treaty  was  presented  to  the  Powers  whose  delegates  had 
signed  it,  some  of  them  awoke  to  the  fact  that  upon  many  sub- 
jects most  certain  to  call  for  the  action  of  a  court  there  was 
no  general  agreement  as  to  what  the  rules  of  international 
law  were,  and  that  different  nations  had  different  ideas  as  to 
what  justice  and  equity  would  require,  and  that  each  judge 
would  naturally  follow  the  views  of  his  own  country.    Ac- 


398  INTERNATIONAL  SUBJECTS 

cordingly  the  Conference  of  London  was  called,  and  met  in 
December,  1908.  In  that  Conference  the  delegates  of  the 
principal  maritime  powers  came  to  agreement  upon  a  series 
of  questions  and  they  embodied  their  agreement  in  the 
seventy-one  articles  of  the  Declaration  of  London.  If  that 
Declaration  had  been  ratified  by  all  the  Powers  in  the  Con- 
ference, it  would  doubtless  have  been  accepted  as  a  statement 
of  the  international  law  upon  the  subjects  covered.  But  it 
was  not  ratified,  and  so  the  Prize  Court  treaty  remains  inef- 
fective because  the  necessary  basis  for  the  action  of  the  Court 
is  wanting.  It  is  plain  that  in  order  to  have  real  courts  by 
which  the  legal  rights  of  nations  can  be  determined  and  the 
conduct  of  nations  can  be  subjected  to  definite  tests,  there 
must  be  a  settlement  by  agreement  of  old  disputes  as  to  what 
the  law  ought  to  be  and  provision  for  extending  the  law  over 
fields  which  it  does  not  now  cover.  One  thing  especially 
should  be  done  in  this  direction.  Law  cannot  control  na- 
tional policy,  and  it  is  through  the  working  of  long-continued 
and  persistent  national  policies  that  the  present  war  has 
come.  Against  such  policies  all  attempts  at  conciHation  and 
good  understanding  and  good-will  among  the  nations  of 
Europe  have  been  powerless.  But  law,  if  enforced,  can  con- 
trol the  external  steps  by  which  a  nation  seeks  to  follow  a 
policy,  and  rules  may  be  so  framed  that  a  policy  of  aggression 
cannot  be  worked  out  except  through  open  violations  of  law 
which  will  meet  the  protest  and  condemnation  of  the  world 
at  large,  backed  by  whatever  means  shall  have  been  devised 
for  law  enforcement. 

There  is  another  weakness  of  international  law  as  a  binding 
force  which  it  appears  to  me  can  be  avoided  only  by  a  radical 
change  in  the  attitude  of  nations  towards  violations  of  the 
law. 

We  are  all  familiar  with  the  distinction  in  the  mimicipal 
law  of  all  civilized  countries,  between  private  and  public 


OUTLOOK  FOR  INTERNATIONAL  LAW         399 

rights  and  the  remedies  for  the  protection  or  enforcement  of 
them.  Ordinary  injuries  and  breaches  of  contract  are  re- 
dressed only  at  the  instance  of  the  injured  person,  and  other 
persons  are  not  deemed  entitled  to  interfere.  It  is  no  concern 
of  theirs.  On  the  other  hand,  certain  flagrant  wrongs  the 
prevalence  of  which  would  threaten  the  order  and  seciu-ity  of 
the  community  are  deemed  to  be  everybody's  business.  If, 
for  example,  a  man  be  robbed  or  assaulted,  the  injury  is 
deemed  not  to  be  done  to  him  alone,  but  to  every  member  of 
the  state  by  the  breaking  of  the  law  against  robbery  or 
against  violence.  Every  citizen  is  deemed  to  be  injured  by 
the  breach  of  the  law  because  the  law  is  his  protection,  and 
if  the  law  be  violated  with  impunity,  his  protection  will  dis- 
appear. Accordingly,  the  government,  which  represents  all 
its  citizens,  undertakes  to  punish  such  action  even  though 
the  particular  person  against  whom  the  injury  was  done  may 
be  content  to  go  without  redress.  Up  to  this  time  breaches 
of  international  law  have  been  treated  as  we  treat  wrongs 
under  civil  procedure,  as  if  they  concerned  nobody  except 
the  particular  nation  upon  which  the  injury  was  inflicted 
and  the  nation  inflicting  it.  There  has  been  no  general  recog- 
nition of  the  right  of  other  nations  to  object.  There  has 
been  much  international  discussion  of  what  the  rules  of  law 
ought  to  be  and  the  importance  of  observing  them  in  the 
abstract,  and  there  have  been  frequent  interferences  by  third 
parties  as  a  matter  of  policy  upon  the  ground  that  specific, 
consequential  injury  to  them  might  result  from  the  breach; 
but,  in  general,  states  not  directly  affected  by  the  particular 
injury  complained  of  have  not  been  deemed  to  have  any 
right  to  be  heard  about  it.  It  is  only  as  disinterested  media- 
tors in  the  quarrels  of  others  or  as  rendering  good  oflBces  to 
others  that  they  have  been  accustomed  to  speak  of  it  at  all. 
Until  the  First  Hague  Conference  that  form  of  interference 
was  upon  sufferance.     In  the  Convention  for  the  Pacific 


400  INTERNATIONAL  SUBJECTS 

Settlement  of  International  Disputes,  concluded  at  that  Con- 
ference, it  was  agreed  that  in  case  of  serious  trouble  or  conflict, 
before  an  appeal  to  anns  the  signatory  powers  should  have 
recourse  to  the  good  oflfices  or  mediation  of  foreign  powers, 
and  article  three  also  provided:  "  Independent  of  this  re- 
course, the  signatory  powers  recommend  that  one  or  more 
powers,  strangers  to  the  dispute,  should  on  their  own  initiative 
and  as  far  as  circumstances  may  allow,  offer  their  good  oflSces 
or  mediation  to  the  states  at  variance.  Powers  strangers  to 
the  dispute  have  a  right  to  offer  good  oflSces  or  mediation 
even  during  the  course  of  hostilities.  The  exercise  of  this 
right  can  never  be  regarded  by  one  or  other  of  the  parties  in 
conflict  as  an  unfriendly  act."  These  provisions  are  a  con- 
siderable step  towards  a  change  in  the  theory  of  the  relation 
of  third  powers  to  an  international  controversy.  They 
recognize  such  an  independent  interest  in  the  prevention 
of  conflict  to  be  the  basis  of  a  right  of  initiative  of  other 
powers  in  an  effort  to  bring  about  a  settlement.  It  still 
remains  under  these  provisions,  however,  that  the  other 
powers  assert  no  substantive  right  of  their  own.  They  are 
simply  authorized  to  propose  an  interference  in  the  quarrels 
of  others  to  which  they  are  deemed  to  be  strangers.  The 
enforcement  of  the  rules  of  international  law  is  thus  left  to 
the  private  initiative  of  the  country  appealing  to  those  rules 
for  protection,  and  the  rest  of  the  world  has  in  theory  and  in 
practice  no  concern  with  the  enforcement  or  non-enforcement 
of  the  rules. 

If  the  law  of  nations  is  to  be  binding,  if  the  decisions  of 
tribunals  charged  with  the  application  of  that  law  to  inter- 
national controversies  are  to  be  respected,  there  must  be  a 
change  in  theory,  and  violations  of  the  law  of  such  a  character 
as  to  threaten  the  peace  and  order  of  the  commimity  of  na- 
tions must  be  deemed  to  be  a  violation  of  the  right  of  every 
civilized  nation  to  have  the  law  maintained  and  a  legal 


OUTLOOK  FOR  INTERNATIONAL  LAW         401 

injury  to  every  nation.    When  a  controversy  arises  between 
two  nations,  other  nations  are  indeed  strangers  to  the  dis- 
pute as  to  what  the  law  requires  in  that  controversy,  but 
they  cannot  really  be  strangers  to  a  dispute  as  to  whether 
the  law  which  is  applicable  to  the  circumstances  shall  be 
observed  or  violated.    Next  to  the  preservation  of  national 
character,  the  most  valuable  possession  of  all  peaceable 
nations,  great  and  small,  is  the  protection  of  those  laws  which 
constrain  other  nations  to  conduct  based  upon  principles  of 
justice  and  humanity.    Without  that  protection,  there  is  no 
safety  for  the  small  state,  except  in  the  shifting  currents  of 
policy  among  its  great  neighbors,  and  none  for  a  great  state, 
however  peaceable  and  just  may  be  its  disposition,  except  in 
readiness  for  war.     International  laws  violated  with  im- 
punity must  soon  cease  to  exist,  and  every  state  has  a  direct 
interest  in  preventing  those  violations  which,  if  permitted  to 
continue,  would  destroy  the  law.    Wherever  in  the  world  the 
laws  which  should  protect  the  independence  of  nations,  the 
inviolability  of  their  territory,  the  lives  and  property  of  their 
citizens,  are  violated,  all  other  nations  have  a  right  to  protest 
against  the  breaking  down  of  the  law.    Such  a  protest  would 
not  be  an  interference  in  the  quarrels  of  others.    It  would  be 
an  assertion  of  the  protesting  nation's  own  right  against  the 
injury  done  to  it  by  the  destruction  of  the  law  upon  which  it 
relies  for  its  peace  and  security.    What  would  follow  such  a 
protest  must  in  each  case  depend  upon  the  protesting  na- 
tion's own  judgment  as  to  policy,  upon  the  feeling  of  its 
people  and  the  wisdom  of  its  governing  body.    Whatever  it 
does,  if  it  does  anything,  will  be  done  not  as  a  stranger  to  a 
dispute  or  as  an  intermediary  in  the  afifairs  of  others,  but  in 
its  own  right  for  the  protection  of  its  own  interest.    Upon  no 
other  theory  than  this  can  the  decisions  of  any  court  for  the 
application  of  the  law  of  nations  be  respected,  or  any  league 
or  concert  or  agreement  among  nations  for  the  enforcement 


402  INTERNATIONAL  SUBJECTS 

of  peace  by  arms  or  otherwise  be  established,  or  any  general 
opinion  of  mankind  for  the  maintenance  of  law  be  effective. 
Can  any  of  these  things  be  done  ?  Can  the  law  be  strength- 
ened and  made  effective  ?  Imperfect  and  conflicting  as  is 
the  information  upon  which  conjecture  must  be  based,  I 
think  there  is  ground  for  hope  that  from  the  horrors  of  vio- 
lated law  a  stronger  law  may  come.  It  was  during  the  appal- 
ling crimes  of  the  Thirty  Years  War  that  Grotius  wrote  his 
De  Jure  Belli  ac  Pads  and  the  science  of  international  law 
first  took  form  and  authority.  The  moral  standards  of  the 
Thirty  Years  War  have  returned  again  to  Europe  with  the 
same  dreadful  and  intolerable  consequences.  We  may  hope 
that  there  will  be  again  a  great  new  departure  to  escape 
destruction  by  subjecting  the  nations  to  the  rule  of  law.  The 
development  and  extension  of  international  law  has  been 
obstructed  by  a  multitude  of  jealousies  and  supposed  inter- 
ests of  nations  each  refusing  to  consent  to  any  rule  unless  it 
be  made  most  favorable  to  itself  in  all  possible  future  con- 
tingencies. The  desire  to  have  a  law  has  not  been  strong 
enough  to  overcome  the  determination  of  each  nation  to 
have  the  law  suited  to  its  own  special  circumstances;  but 
when  this  war  is  over  the  desire  to  have  some  law  in  order  to 
prevent  so  far  as  possible  a  recurrence  of  the  same  dreadful 
experience  may  sweep  away  all  these  reluctances  and  schemes 
for  advantage  and  lead  to  agreement  where  agreement  has 
never  yet  been  possible.  It  often  happens  that  small  dif- 
ferences and  petty  controversies  are  swept  away  by  a  great 
disaster,  deep  feeling,  and  a  sense  of  common  danger.  If 
this  be  so  we  can  have  an  adequate  law  and  a  real  court 
which  will  apply  its  principles  to  serious  as  well  as  petty 
controversies,  and  a  real  public  opinion  of  the  world  respond- 
ing to  the  duty  of  preserving  the  law  inviolate.  If  there  be 
such  an  opinion  it  will  be  enforced.  I  shall  not  now  inquire 
into  the  specific  means  of  enforcement,  but  the  means  can 


OUTLOOK  FOR  INTERNATIONAL  LAW         403 

be  found.  It  is  only  when  opinion  is  uncertain  and  divided, 
or  when  it  is  sluggish  and  indifferent  and  acts  too  late,  that  it 
fails  of  effect.  During  all  the  desperate  struggles  and  emer- 
gencies of  the  great  war,  the  conflicting  nations  from  the 
beginning  have  been  competing  for  the  favorable  judgment 
of  the  rest  of  the  world  with  a  soKcitude  which  shows  what 
a  mighty  power  even  now  that  opinion  is. 

Nor  can  we  doubt  that  this  will  be  a  different  world  when 
peace  comes.  Universal  mourning  for  the  imtimely  dead, 
suffering  and  sacrifice,  the  triumph  of  patriotism  over  selfish- 
ness, the  long  dominance  of  deep  and  serious  feeling,  the 
purifying  influences  of  self-devotion,  will  surely  have  changed 
the  hearts  of  the  nations,  and  much  that  is  wise  and  noble 
and  for  the  good  of  humanity  may  be  possible,  that  never  was 
possible  before. 

Some  of  us  believe  that  the  hope  of  the  world's  progress 
lies  in  the  spread  and  perfection  of  democratic  self-govern- 
ment. It  may  be  that  out  of  the  rack  and  welter  of  the  great 
conflict  may  arise  a  general  consciousness  that  it  is  the  people 
who  are  to  be  considered,  their  rights  and  liberties  to  govern 
and  be  governed  for  themselves  rather  than  rulers'  ambitions 
and  policies  of  aggrandizement.  If  that  be  so,  our  hopes  will 
be  reaKzed,  for  autocracy  can  protect  itself  by  arbitrary 
power,  but  the  people  can  protect  themselves  only  by  the 
rule  of  law. 


SHOULD  INTERNATIONAL  LAW  BE 
CODIFIED?! 

ADDRESS  AT  A  SESSION  OF  SECTION  SIX  OF  THE  SECOND  PAN- 
AMERICAN  SCIENTIFIC  CONGRESS  MEETING  JOINTLY  WITH 
THE  AMERICAN  INSTITUTE  OF  INTERNATIONAL  LAW  AND  THE 
AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW,  WASHINGTON, 
DECEMBER  30,  1915 

The  Second  Pan-American  Scientific  Congress  met  in  the  city  of  Washington, 
December  27,  1915,  and  adjoiuned  January  8,  1916.  As  stated  by  the  preamble  to 
the  Final  Act  of  this  Congress,  it  was  held  "  for  the  purpose  of  bringing  into  close 
and  intimate  contact  the  leaders  of  scientific  thought  and  of  public  opinion  in  the 
American  Republics,  to  the  end  that  by  an  exchange  of  views  results  might  be 
reached  of  service  to  the  peoples  of  the  American  continent,  and  that  by  personal 
intercourse  foundations  would  be  laid  for  friendly  and  harmonious  cooperation  in 
the  future." 

An  elaborate  program  was  prepared  by  the  Executive  Conamittee  of  the  United 
States  dealing  with  the  various  phases  of  science,  arranged  in  nine  sections,  the 
Sixth  Section  being  devoted  to  International  Law,  Public  Law,  and  Jurisprudence. 

I  SHALL  not  at  this  hour  detain  you  by  any  extended 
remarks,  and  I  should  apologize  for  having  no  prepared 
address.  The  subject  is  one  which  is  very  interesting  to  me 
and  must  be  very  interesting,  I  think,  to  every  one  who 
thinks  about  international  affairs  or  who  thinks  about  the 
possibilities  of  the  future  of  his  country.  Should  interna- 
tional law  be  codified  ?  and,  if  so,  should  it  be  done  through 
governmental  agencies  or  by  private  scientific  societies  .'*  If 
that  means  should  we  undertake  to  put  the  law  of  nations  into 
a  single  body  which  shall  be  the  rule  and  guide  for  interna- 
tional relations,  I  think  we  must  answer  "  No,  that  it  is  im- 
possible at  the  present  time."     Mr.  Field  made  a  valiant 

^  The  reader  desiring  fully  to  grasp  Mr.  Root's  views  on  this  subject,  should  see 
also  his  presidential  address  at  the  fifth  annual  meeting  of  the  American  Society  of 
International  Law,  April  27,  1911,  on  "  The  Function  of  Private  Codification  in 
International  Law,"  on  page  57  of  this  volume. 

4M 


406  INTERNATIONAL  SUBJECTS 

attempt,  and  Blnntschli  a  great  eflFort,  but  the  formation  of 
international  law,  still  in  its  infancy,  is  a  process  only  just 
begun,  and  it  has  not  reached  a  point  where  the  rules  can  be 
embodied  in  a  code.  On  the  other  hand,  codification,  con- 
sidered not  as  a  result  but  as  a  process,  seems  to  me  plainly 
should  be  attempted  and  pressed  forward  and  urged  with  all 
possible  force. 

It  is  curious  that  codification  should  be  especially  necessary 
in  a  system  of  law  which  is  based  upon  custom  more  exclu- 
sively even  than  municipal  law;  but  that  is  necessarily  so  in 
the  case  of  the  law  of  nations,  because  there  are  no  legisla- 
tures to  make  the  law  and  there  are  no  judicial  decisions  to 
establish  by  precedent  what  the  law  is.  One  great  weakness 
of  international  law  has  been  that  to  ascertain  what  it  was 
you  have  to  go  to  text  writers,  and  to  a  great  variety  of  state- 
ments, differing,  inconsistent,  many  of  them  obscure  and 
vague,  capable  of  different  interpretations,  so  that  the  instant 
the  occasion  for  the  application  of  a  law  arises,  there  is 
pressed  upon  the  conflicting  or  disputing  nations  the  question 
as  to  what  the  law  is,  without  any  clear  and  definite  standard 
from  which  to  ascertain  it. 

Recent  events,  or  rather  the  realization  of  the  truth  which 
comes  from  a  great  war  in  Europe,  compels  us  to  consider  the 
great  shortcomings  of  what  we  think  of  as  international  law, 
to  consider  how  narrow  the  field  which  it  covers,  how  vague 
and  imcertain  it  is  within  that  field,  and  how  difficult  it  is  to 
compel  in  any  way  a  recognition  of  its  rules  of  right  conduct. 
There  is  but  one  way  in  which  that  weakness  of  international 
law  can  be  ciu*ed,  and  that  is  by  the  process  of  codification,  a 
process  which  must  extend  through  long  periods,  which  has 
been  going  on  very  gradually  for  many  years.  The  Declara- 
tion of  Paris  was  a  little  bit  of  codification.  The  three  rules 
of  the  Treaty  of  Washington  constituted  a  little  bit  of  codi- 
fication as  between  the  United  States  and  Great  Britain,  and 


CODIFICATION  OF  INTERNATIONAL  LAW     407 

they  have  been  in  substance  accepted  and  adopted  by  the 
nations  of  Europe  at  The  Hague.  The  Geneva  Convention 
covered  a  certain  field  by  codification,  and  the  Hague  Con- 
ventions a  much  wider  field.  So  I  say,  considered  as  a  con- 
clusion, there  can  be  no  codification,  but,  considered  as  a 
process,  there  must  be  codification,  codification  pressed 
forward  and  urged  on  by  all  possible  means. 

The  very  fact  that  there  are  no  courts  to  establish  prece- 
dents and  no  legislatures  to  make  laws  makes  this  necessary. 
All  international  law  is  made,  not  by  any  kind  of  legislation, 
but  by  agreement.  The  agreement  is  based  upon  customs, 
but  the  ascertainment  and  recognition  of  the  customs  is  the 
subject  of  the  agreement;  and  how  can  agreement  be  pos- 
sible unless  the  subject-matter  of  the  agreement  is  definite 
and  certain  ? 

I  say  that  recent  events  indicate  that  we  must  press  for- 
ward codification.  I  can  go  a  step  further  than  that.  The 
changes  in  the  conditions  of  the  earth,  the  changes  in  inter- 
national relations  which  have  been  so  rapid  in  recent  years, 
have  outstripped  the  growth  of  international  law.  I  think  it 
quite  right  to  say  that  the  law  of  nations  does  not  come  so 
near  to  covering  the  field  of  national  conduct  today  as  it  did 
fifty  years  ago.  The  development  of  international  relations 
in  all  their  variety,  in  the  multitude  of  questions  that  arise, 
goes  on  more  rapidly  than  the  development  of  international 
law;  and  if  you  wait  for  customs  without  any  effort  to  trans- 
late the  custom  into  definite  statements  from  year  to  year, 
you  will  never  get  any  law  settled  except  by  bitter  contro- 
versy. The  pressing  forward  of  the  codification  of  interna- 
tional law  is  made  necessary  by  the  swift  moving  of  events 
among  nations.  We  cannot  wait  for  custom  to  lag  behind  the 
action  to  which  the  law  should  be  applied. 

Mr.  Chairman,  I  want  to  express  entire  harmony  with 
what  Governor  Baldwin  said  a  few  moments  ago  upon  the 


408  INTERNATIONAL  SUBJECTS 

other  branch  of  this  question,  as  to  whether  codification 
should  be  by  governmental  agencies  or  by  private  societies. 
It  is  not  practicable  that  governments  should  do  the  thresh- 
ing out  of  questions  necessary  to  reach  a  definite  statement  of 
a  conclusion.  That  has  to  be  done  with  freedom  from  con- 
straint by  the  private  individual  doing  his  work  in  a  learned 
society  or  in  private  intercourse.  I  think  it  is  not  generally 
understood  that  the  first  conference  at  The  Hague  would 
have  been  a  complete  failure  if  it  had  not  been  for  the  accom- 
plished work  of  the  Institut  de  Droit  International.  The  first 
conference  was  called  by  the  Czar  of  Russia  to  consider  and 
agree  upon  disarmament.  It  was  called  with  expressions  of 
the  most  noble  character  which,  if  they  could  have  impressed 
themselves  upon  the  minds  and  hearts  of  Europe,  would  have 
rendered  impossible  the  terrible  sacrifices  that  are  now  going 
on.  The  conference  was  called  for  the  piupose  of  agreeing 
upon  disarmament,  and  for  the  purpose  of  averting  what  the 
Czar  saw  coming  in  the  future  and  which  has  now  come.  But 
there  were  Powers  in  Europe  which  would  not  have  it.  They 
refused  to  enter  a  conference  for  the  purpose  of  considering 
that  subject.  Something  had  to  be  done.  Here  was  a  confer- 
ence called  by  this  great  Power  about  to  meet,  and  something 
had  to  be  done,  so  they  took  the  accomplished  work  of  the 
Institut  de  Droit  International,  which  had  been  threshed  out 
through  the  labors  and  discussions  of  the  most  learned  inter- 
national lawyers  of  Europe,  including  most  of  the  technical 
advisers  of  the  foreign  offices  of  Europe  meeting  in  their 
private  capacity,  and  embodied  it  in  the  conventions  of  the 
First  Hague  Conference.  It  would  have  been  impossible  for 
the  Hague  Conference  to  do  that  work  or  one  tithe  of  it  if 
they  had  not  had  the  material  already  provided. 

So  I  think  it  is  quite  clear  that  the  process  of  codification, 
step  by  step,  subject  by  subject,  point  by  point,  must  begin 
with  the  intellectual  labor  of  private  individuals,  and  it  must 


CODIFICATION  OF  INTERNATIONAL  LAW     409 

be  completed  by  the  acceptance  of  governments.  All  of  the 
himdreds  of  thousands  of  pages  that  have  been  written  upon 
international  law  by  the  private  individuals  go  for  nothing 
unless  governments  accept  them.  A  wilderness  of  text- 
writers  one  has  to  wander  through  in  endeavoring  to  get  at 
what  the  law  of  nations  is,  and  all  that  they  wrote  is  of  no 
consequence,  except  as  it  exercises  a  force  in  bringing  about 
action  and  agreement  by  the  governments  of  the  earth.  So, 
Mr.  Chairman,  this  process  must  have  both  private  initiative 
and  governmental  sanction. 

Mr.  Chairman,  there  is  one  other  subject  which  I  think  we 
should  consider  in  dealing  with  the  subject  of  codification, 
and  that  is  this:  Are  the  small  nations  of  the  earth  to  con- 
tinue ?  Is  it  to  be  any  longer  possible  for  the  little  people  to 
maintain  their  independence  ?  That  is  a  serious  question 
with  many  of  us  in  this  joint  meeting  of  the  Society  and  Sub- 
section Six  of  the  Pan-American  Congress  and  the  American 
Institute.  The  large  nations  can  take  care  of  themselves  by 
the  exercise  of  power,  if  they  are  willing  to  be  armed  to  the 
teeth  always;  but  the  small  countries  —  what  are  they  to 
do  ?  There  is  no  protection  for  them  but  the  protection  of 
law!  And  there  is  no  protection  in  law  unless  the  law  be 
made  clear  and  definite  and  certain,  so  that  a  great  bully 
cannot  escape  it  without  running  into  the  condemnation  of 
that  law.  So  I  say  that  every  dictate  of  humanity  should 
lead  us  to  urge  forward  that  process  by  which  in  its  better 
moments  mankind  may  be  led  to  agree  to  the  setting  up  of 
clear  and  definite  and  distinct  rules  of  right  conduct  for  the 
control  of  the  great  nations  in  their  dealings  with  the  small 
and  weak. 

The  presence  here  of  Dr.  Maurtua,  whom  it  is  a  great  pleas- 
ure for  me  to  hail  as  a  colleague  in  the  Faculty  of  Political 
and  Administrative  Science  of  the  University  of  San  Marcos, 
at  Lima,  and  of  the  distinguished  Ambassador  from  Brazil, 


410  INTERNATIONAL  SUBJECTS 

my  old  friend  from  Rio  de  Janeiro,  lead  me  to  say  something 
which  follows  naturally  from  my  reflections  regarding  the 
interests  of  the  smaller  nations.  It  is  now  nearly  ten  years 
ago  when  your  people,  gentlemen,  and  the  other  peoples  of 
South  America,  were  good  enough  to  give  serious  and  respect- 
ful consideration  to  a  message  that  it  was  my  fortune  to  take 
from  this  great  and  powerful  republic  of  North  America  to 
the  other  American  nations.  I  wish  to  say  to  you,  gentlemen, 
and  to  all  my  Latin  American  friends  here  in  this  congress, 
that  everything  that  I  said  in  behalf  of  the  Government  of  the 
United  States  at  Rio  de  Janeiro  in  1906  is  as  true  now  as  it 
was  true  then.  There  has  been  no  departure  from  the  stand- 
ard of  feeling  and  of  policy  which  was  declared  then  in  behalf 
of  the  American  people.  On  the  contrary,  there  is  through- 
out the  people  of  this  coimtry  a  fuller  realization  of  the  duty 
and  the  morality  and  the  high  policy  of  that  standard. 

Of  course,  in  every  coimtry  there  are  individuals  who  de- 
part from  the  general  opinion  and  general  conviction,  both  in 
their  views  and  in  their  conduct;  but  the  great,  the  over- 
whelming body  of  the  American  people  love  liberty,  not  in 
the  restricted  sense  of  desiring  it  for  themselves  alone,  but  in 
the  broader  sense  of  desiring  it  for  all  mankind.  The  great 
body  of  the  people  of  these  United  States  love  justice,  not 
merely  as  they  demand  it  for  themselves,  but  in  being  willing 
to  render  it  to  others.  We  believe  in  the  independence  and 
the  dignity  of  nations,  and  while  we  are  great,  we  estimate 
oiu*  greatness  as  one  of  the  least  of  our  possessions,  and  we 
hold  the  smallest  state,  be  it  upon  an  island  of  the  Caribbean 
or  anywhere  in  Central  or  South  America,  as  our  equal  in 
dignity,  in  the  right  to  respect  and  in  the  right  to  the  treat- 
ment of  an  equal.  We  beUeve  that  nobility  of  spirit,  that 
high  ideals,  that  capacity  for  sacrifice  are  nobler  than  ma- 
terial wealth.  We  know  that  these  can  be  found  in  the  little 
state  as  well  as  in  the  big  one.    In  our  respect  for  you  who  are 


CODIFICATION  OF  INTERNATIONAL  LAW     411 

small,  and  for  you  who  are  great,  there  can  be  no  element  of 
condescension  or  patronage,  for  that  would  do  violence  to  our 
own  conception  of  the  dignity  of  independent  sovereignty. 
We  desire  no  benefits  which  are  not  the  benefits  rendered  by 
honorable  equals  to  each  other.  We  seek  no  control  that  we 
are  imwilling  to  concede  to  others,  and  so  long  as  the  spirit  of 
American  freedom  shall  continue,  it  will  range  us  side  by  side 
with  you,  great  and  small,  in  the  maintenance  of  the  rights  of 
nations,  the  rights  which  exist  as  against  us  and  as  against  all 
the  rest  of  the  world. 

With  that  spirit  we  hail  your  presence  here  to  cooperate 
with  those  of  us  who  are  interested  in  international  law;  we 
hail  the  formation  of  the  new  American  Institute  of  Inter- 
national Law  and  the  personal  friendships  that  are  being 
formed  day  by  day  between  the  men  of  the  North  and  the 
men  of  the  South,  all  to  the  end  that  we  may  unite  in  such 
clear  and  definite  declaration  of  the  principles  of  right  con- 
duct among  nations,  and  in  such  steadfast  and  honorable 
support  of  those  principles  as  shall  command  the  respect  of 
mankind  and  insure  their  enforcement. 


i 


THE  DECLARATION  OF  THE  RIGHTS  AND 

DUTIES  OF  NATIONS  OF  THE  AMERICAN 

INSTITUTE  OF  INTERNATIONAL  LAW 

PRESIDENTIAL  ADDRESS  AT  THE  TENTH  ANNUAL  MEETING  OF 

THE  AMERICAN  SOCIETY  OF  INTERNATIONAL  LAW 

WASHINGTON,  APRIL  27.  1916 

The  American  Institute  of  International  Law,  consisting  of  five  representatives 
from  each  national  society  of  international  law  in  each  of  the  twenty-one  American 
republics,  was  founded  on  October  12,  1912,  and  held  its  first  session  in  connection 
with  and  under  the  auspices  of  the  Second  Pan-American  Scientific  Congress,  at 
Washington,  December  28,  1915,  to  January  8,  1916.  On  January  6,  1916,  the 
American  Institute  of  International  Law,  upon  the  motion  of  its  president,  James 
Brown  Scott,  adopted  a  Declaration  of  the  Rights  and  Duties  of  Nations,  prefixed 
by  a  preamble  and  followed  by  a  conunentary  upon  each  article  of  the  declaration. 
This  commentary  was  based  in  each  instance  upon  a  decision  of  the  Supreme  Court 
of  the  United  States. 

WITH  this  meeting  we  finish  the  first  decade  of  this 
Society.  How  great  is  the  change  of  conditions  in  the 
field  of  international  law  during  that  period !  Ten  years  ago 
all  the  governments  of  the  world  professed  unqualified  respect 
and  obedience  to  the  law  of  nations,  and  a  very  small  number 
of  persons  not  directly  connected  with  government  knew  or 
cared  anything  about  it.  In  this  country  at  least  interna- 
tional law  was  regarded  as  a  rather  antiquated  branch  of  use- 
less learning,  diplomacy  as  a  foolish  mystery,  and  the  foreign 
service  as  a  superfluous  expense.  Now  that  governments 
have  violated  and  flouted  the  law  in  many  ways  and  with 
appalling  consequences,  the  people  of  this  country  at  least 
have  begun  to  realize  that  observance  of  the  law  has  a  real 
and  practical  relation  to  the  peace  and  honor  of  their  own 
country  and  their  own  prosperity.  They  are  beginning  to 
take  an  interest  in  the  subject,  to  discuss  it  in  the  newspapers, 

413 


414  INTERNATIONAL  SUBJECTS 

to  inquire  how  observance  of  the  law  may  be  enforced.  There 
appears  a  dawning  consciousness  that  a  democracy  which 
undertakes  to  control  its  own  foreign  relations  ought  to 
know  something  about  the  subject.  If  we  had  not  estab- 
lished this  Society  ten  years  ago  to  study  and  discuss  and 
spread  a  knowledge  of  international  law  it  would  surely  be 
demanded  now,  and  we  may  be  certain  that  our  annual 
public  discussions  and  the  publication  of  the  admirable 
Journal  which  we  have  always  maintained,  with  its  definite 
and  certain  information  upon  international  events,  its  inter- 
esting and  well-informed  discussion  of  international  topics, 
and  its  supplements,  with  their  wealth  of  authentic  copies  of 
international  documents,  have  contributed  materially  towards 
fitting  the  people  of  our  coimtry  to  deal  with  the  international 
situations  which  are  before  them. 

Following  our  example,  all  the  American  countries  have 
established  similar  societies,  so  that  there  are  now  twenty- 
one  such  societies  on  the  American  continents.  In  most 
cases  these  societies  have  been  organized  with  the  direct 
approval  and  sympathy  of  the  government  of  the  country 
and  they  include  in  their  numbers  a  large  part  of  the  most 
eminent  leaders  of  opinion  in  all  the  American  states.  Still 
another  institution  has  been  created  in  the  American  In- 
stitute of  International  Law,  composed  of  delegates  selected, 
to  a  limited  number,  by  each  of  these  national  societies. 
This  Institution  has  been  established  not  as  a  competitor  of 
the  Institut  de  Droit  International,  which  selects  its  members 
from  among  all  the  civilized  countries,  and  not  with  the  idea 
that  there  is  such  a  thing  as  American  international  law  to  be 
distinguished  from  general  international  law,  but  with  the 
idea  that  there  may  be  special  American  views  upon  inter- 
national questions;  that  the  circumstances  of  the  American 
republics  may  make  it  desirable  for  them  to  insist  upon  and 
press  forward  the  development  of  particular  principles  in  the 


RIGHTS  AND  DUTIES  OF  NATIONS  415 

law;  that  there  are  varieties  of  opinion  upon  such  subjects 
which  it  may  be  useful  to  subject  to  common  discussion  and 
comparison  of  views;  that  the  promotion  of  the  habit  of 
thinking  broadly  and  internationally  and  not  narrowly  or 
locally,  and  a  knowledge  in  each  coimtry  of  the  points  of  view 
and  habits  of  thought  of  each  other  country,  will  make 
all  the  American  states  more  useful  members  of  the  family 
of  nations,  more  considerate,  more  tolerant  of  differences  of 
opinion,  and  more  conscious  of  the  international  duties 
which  are  correlative  to  international  rights. 

The  American  Institute  of  International  Law  held  its  first 
meeting  in  Washington  in  December  last,  and,  after  a  dis- 
cussion in  which  representatives  from  all  parts  of  the  new 
world  engaged,  it  adopted  as  its  point  of  departure  for 
future  discussions  a  declaration  of  the  rights  and  duties 
of  nations  which  I  commend  especially  to  your  attention. 
The  declaration  was  in  these  words: 

Declabation  of  the  Rights  and  Duties  op  Nations 

I.  Every  nation  has  the  right  to  exist,  and  to  protect  and  to  conserve 
its  existence;  but  this  right  neither  implies  the  right  nor  justifies  the  act  of 
the  state  to  protect  itself  or  to  conserve  its  existence  by  the  commission 
of  unlawful  acts  against  innocent  and  unoffending  states. 

II.  Every  nation  has  the  right  to  independence  in  the  sense  that  it  has 
a  right  to  the  pursuit  of  happiness  and  is  free  to  develop  itself  without 
interference  or  control  from  other  states,  provided  that  in  so  doing  it  does 
not  interfere  with  or  violate  the  rights  of  other  states. 

ni.  Every  nation  is  in  law  and  before  law  the  equal  of  every  other 
nation  belonging  to  the  society  of  nations,  and  all  nations  have  the  right 
to  claim  and,  according  to  the  Declaration  of  Independence  of  the  United 
States,  "  to  assume,  among  the  powers  of  the  earth,  the  separate  and  equal 
station  to  which  the  laws  of  nature  and  of  nature's  God  entitle  them." 

IV.  Every  nation  has  the  right  to  territory  within  defined  boundaries 
and  to  exercise  exclusive  jurisdiction  over  its  territory,  and  all  persons 
whether  native  or  foreign  found  therein. 

V.  Every  nation  entitled  to  a  right  by  the  law  of  nations  is  entitled  to 
have  that  right  respected  and  protected  by  all  other  nations,  for  right  and 
duty  are  correlative,  and  the  right  of  one  is  the  duty  of  all  to  observe. 


416  INTERNATIONAL  SUBJECTS 

VI.  International  law  is  at  one  and  the  same  time  both  national  and 
international:  national  in  the  sense  that  it  is  the  law  of  the  land  and  ap- 
plicable as  such  to  the  decision  of  all  questions  involving  its  principles; 
international  in  the  sense  that  it  is  the  law  of  the  society  of  nations  and 
applicable  as  such  to  all  questions  between  and  among  the  members  of  the 
society  of  nations  involving  its  principles.^ 

You  will  observe  that  this  declaration  states  in  the  main 
familiar  principles.  We  have  long  been  accustomed  to  such 
statements  in  the  text  books.  Indeed  the  oflBcial  reporter  of 
the  Institute,  in  his  commentary  upon  the  declaration,  under- 
takes to  show  and  does  show  that  every  statement,  far  from 
being  novel,  is  based  upon  the  decisions  of  American  courts 
and  the  authority  of  American  publicists.  Yet  the  declara- 
tion was  not  superfluous  or  unimportant.  There  is  a  vast 
difference  between  the  occasional  decisions  of  a  national 
court  or  the  opinions  of  individual  students,  and  a  unani- 
mous agreement  of  representatives  of  all  the  sovereign  states 

^  Mr.  Root  quotes  only  the  text  of  the  declaration,  and  the  preamble  prefixed  to 
it  is  here  printed  for  the  information  of  the  reader  who  may  desire  to  have  the  whole 
document  before  him. 

Whereas,  the  mimicipal  law  of  civilized  nations  recognizes  and  protects  the  right 
to  life,  the  right  to  liberty,  the  right  to  the  pursuit  of  happiness,  as  added  by  the  Decla- 
ration of  Indepjendence  of  the  United  States  of  America,  the  right  to  legal  equality, 
the  right  to  property,  and  the  right  to  the  enjoyment  of  the  aforesaid  rights;  and 

Whereas,  these  fundamental  rights,  thus  universally  recognized,  create  a  duty  on 
the  p>art  of  the  peoples  of  all  nations  to  observe  them;  and 

Whereas,  according  to  the  political  philosophy  of  the  Declaration  of  Indepen- 
dence of  the  United  States,  and  the  universal  practice  of  the  American  Republics, 
nations  or  governments  are  regarded  as  created  by  the  people,  deriving  their  just 
powers  from  the  consent  of  the  governed,  and  are  instituted  among  men  to  promote 
their  safety  and  happiness  and  to  secure  to  the  people  the  enjoyment  of  their 
fimdamental  rights;  and 

Whereas,  the  nation  is  a  moral  or  juristic  person,  the  creature  of  law,  and  sub- 
ordinated to  law  as  is  the  natural  person  in  political  society;  and 

Whereas,  we  deem  that  these  fundamental  rights  can  be  stated  in  terms  of  inter- 
national law  and  applied  to  the  relations  of  the  members  of  the  society  of  nations, 
one  with  another,  just  as  they  have  been  applied  in  the  relations  of  the  citizens  or 
subjects  of  the  states  forming  the  Society  of  Nations;  and 

Whereas,  these  fundamental  rights  of  national  jurisprudence,  namely,  the  right 
to  life,  the  right  to  liberty,  the  right  to  the  pursuit  of  happiness,  the  right  to  equality 
before  the  law,  the  right  to  property,  and  the  right  to  the  observance  thereof  are. 


RIGHTS  AND  DUTIES  OF  NATIONS  417 

of  the  western  hemisphere  upon  a  statement  in  definite 
terms  of  fundamental  principles  of  international  right.  A 
still  more  important  reason  for  such  a  declaration  lies  in  the 
fact  that  the  fundamental  principles  declared,  now  stand 
denied  or  repudiated  by  the  conduct  of  nations  in  the  great 
war  that  rages  in  the  old  world. 

This  instrument  asserts  the  right  of  every  nation  to  con- 
tinued existence,  to  independence,  to  exclusive  jurisdiction 
over  its  own  territory,  and  to  equality  with  every  other 
nation;  and  it  denies  the  right  of  any  nation  to  commit  for 
its  own  protection  or  preservation,  imlawful  acts  towards 
innocent  and  unoffending  states.  These  are  the  fundamen- 
tals of  international  right.  They  involve  the  existence  of  a 
democratic  community  of  nations  in  which  each  individual 
nation  has  the  same  rights  and  full  liberty  for  their  enjoy- 
ment, limited  and  limited  only,  by  the  equal  rights  of  every 
other  member  of  the  community.  The  body  of  rules  of 
action  which  long  experience  and  general  consent  have 
worked  out  for  the  assertion  and  preservation  of  these  rights 
and  the  application  of  the  imiversal  limitation  upon  them  in 
the  practical  relations  between  nations  constitutes  interna- 
tional law.     This  scheme  of  organization  of  the  civilized 

when  stated  in  terms  of  international  law,  the  right  of  the  nation  to  exist  and  to 
protect  and  to  conserve  its  existence;  the  right  of  independence  and  the  freedom  to 
develop  itself  without  interference  or  control  from  other  nations;  the  right  of 
equality  in  law  and  before  law;  the  right  to  territory  within  defined  boundaries  and 
to  exclusive  jurisdiction  therein;  and  the  right  to  the  observance  of  these  funda- 
mental rights;  and 

Whereas,  the  rights  and  the  duties  of  nations  are,  by  virtue  of  membership  in  the 
society  thereof,  to  be  exercised  and  performed  in  accordance  with  the  exigencies  of 
their  mutual  interdependence  expressed  in  the  preamble  to  the  Convention  for  the 
Pacific  Settlement  of  International  Disputes  of  the  First  and  Second  Hague  Peace 
Conferences,  recognizing  the  solidarity  which  unites  the  members  of  the  society  of 
ciAnlized  nations; 

Therefore,  the  American  Institute  of  International  Law,  at  its  first  session,  held 
in  the  city  of  Washington,  in  the  United  States  of  America,  on  the  sixth  day  of 
January,  1916,  adopts  the  following  six  articles,  together  with  the  commentary 
thereon,  to  be  known  as  its  Declaration  of  the  Rights  and  Duties  of  Nations. 


418  INTERNATIONAL  SUBJECTS 

inhabitants  of  the  earth  is  sharply  distinguished  from  con- 
ditions of  tribal  hostility  which  prevailed  during  all  the  early 
part  of  human  history  and  in  which  each  separate  tribe  main- 
tained its  independence  and  liberty  as  best  it  could  by  force 
of  arms  in  a  normal  relation  of  hostility  to  all  other  tribes; 
and  it  is  equally  distinguished  from  the  condition  of  subordi- 
nation and  suzerainty  in  which  a  single  nation,  acquiring  a 
preponderance  of  power,  reduces  other  nations  to  submis- 
sion and  imposes  upon  them  friendly  relations  with  each 
other  as  equal  vassals  of  the  superior  state.  A  familiar 
example  of  the  one  extreme  is  to  be  found  in  Europe  diu-ing 
the  Middle  Ages  and  of  the  other  in  the  Roman  Empire,  and 
upon  a  smaller  scale  and  for  a  brief  period  in  the  control  of 
Napoleon  over  a  large  part  of  Continental  Europe.  One 
condition  affords  independence  to  strong,  civil  societies  at 
the  expense  of  progress  in  civilization.  The  other  condition 
fosters  the  arts  of  peace  at  the  cost  of  liberty.  The  demo- 
cratic organization  of  a  community  of  nations,  on  a  basis  of 
acknowledged  right,  declared  and  protected  by  law,  seeks  to 
avoid  both  of  these  extremes,  and  the  vast  progress  of  civili- 
zation since  the  Peace  of  Westphalia,  with  the  general 
advance  of  mankind  in  comfort,  intelHgence,  individual 
freedom  and  opportunity,  testify  to  the  superior  merit  of 
the  arrangement.  Yet  just  as  ordinary  democracies  com- 
posed of  natural  persons  tend,  unless  continually  restrained, 
to  lapse  into  anarchy  on  the  one  hand  or  to  seek  security 
under  autocracy  on  the  other,  this  community  of  nations  has 
hitherto  been  in  a  condition  of  unstable  equihbrium,  always 
in  danger  of  being  overturned  in  one  direction  or  the  other. 
The  age-long  struggle  to  maintain  the  balance  of  power  in 
Europe,  often  misguided,  as  we  can  see  in  looking  back, 
often  controlled  by  selfish  purposes,  often  violating  the  very 
rights  it  professed  to  preserve,  has  nevertheless  been  constant 
effort  to  counteract  these  tendencies. 


RIGHTS  AND  DUTIES  OF  NATIONS  419 

A  careful  examination  of  the  undisputed  facts  which  show 
the  origin  and  conduct  of  the  present  war  leaves  no  room  for 
doubt  that  the  entire  basis  of  the  community  organization 
of  nations  upon  which  rests  the  structure  of  international  law 
is  put  at  issue  in  the  struggle.  The  principles  of  action  upon 
which  the  war  was  begim  involve  a  repudiation  of  every 
element  of  fundamental  right  upon  which  the  law  of  nations 
rests.  The  right  of  every  nation  to  continued  existence,  to 
independence,  to  exclusive  jurisdiction  over  its  own  territory 
and  equality  with  other  nations,  is  denied.  The  right  of  any 
strong  nation  to  destroy  all  those  alleged  rights  of  other 
nations  in  pursuit  of  what  it  deems  to  be  useful  for  its  own 
protection  or  preservation  is  asserted.  Under  this  view  what 
we  have  been  accustomed  to  call  fundamental  rights  would 
become  mere  privilege  to  be  enjoyed  upon  sufferance  accord- 
ing to  the  views  of  expedience  held  by  the  most  powerful. 
If  this  view  prevails  the  whole  structure  of  modern  inter- 
national law  will  be  without  foundation;  and  the  discussion 
of  its  rules  with  the  nations  who  maintain  this  view  must  now 
be  not  a  real  appeal  to  any  law,  but  merely  a  balancing  of 
possible  injuries  and  benefits.  So  long  as  these  fundamental 
questions  are  unsettled  all  discussion  of  international  law 
must  be  hypothetical,  as  if  architects  were  to  discuss  the 
elevation  of  a  building  while  the  ground  plan  remains  un- 
determined. These  propositions  are  the  postulates  of  all 
reasoning  regarding  the  rules  of  international  law.  All  dis- 
cussion of  international  right  is  based  upon  them,  assumes 
assent  to  them.  To  discuss  international  law  with  a  nation 
which  denies  these  postulates  can  be  nothing  but  an  unreal 
and  futile  appearance  of  discussing  the  law.  WTien  your 
major  premise  is  disputed  you  must  establish  that  before  you 
can  go  on  with  your  argument. 

There  is  only  one  real  question  of  international  law  today, 
and  that  is,  whether  these  postulates  of  the  law  are  to  stand 


420  INTERNATIONAL  SUBJECTS 

or  not.  As  between  nations  which  agree  that  they  should 
stand  there  may  be  discussion  as  to  international  rules  based 
upon  that  hypothesis,  but  as  between  nations  which  assert 
and  nations  which  repudiate  these  fundamentals  of  the  law, 
there  can  be  no  real  discussion  except  of  expediency.  The 
declaration  of  the  American  Institute  of  International  Law 
arrays  the  members  of  all  these  American  countries  upon  one 
side  of  this  vital  question  of  principle  which  is  being  fought 
out  in  the  great  war.  Their  act  is  altogether  impersonal.  It 
takes  no  account  of  responsibility  or  blame  or  racial  feelings 
or  friendships  or  enmities,  and  it  is  unmistakable.  The 
representatives  of -all  the  American  countries  affirm  the  old 
basis  of  international  right  upon  which  depends  the  life,  the 
independence  and  the  legal  equality  of  all  small  nations  and 
the  laws  which  protect  them  against  the  arbitrary  power  of 
the  strong. 

It  will  be  useful  to  remember,  however,  that  to  be  effective 
such  declarations  must  be  accompanied  by  conformity  in  the 
conduct  of  the  nations  adhering  to  the  principles  declared. 
There  are  some  rules  of  national  conduct  which  flow  directly 
from  the  principles  of  national  independence  and  equality, 
but  which  do  not  always  coincide  with  the  impulses  of  senti- 
ment or  with  the  apparent  requirements  of  immediate 
interest.  On  the  one  hand  these  principles  require  that 
nations  shall  refrain  from  interference  with  the  internal 
affairs  of  other  nations.  It  frequently  happens  that  many 
persons,  in  the  United  States  for  example,  strongly  disap- 
prove things  that  are  done  in  other  countries  within  the 
jurisdiction  and  affecting  the  citizens  of  those  other  countries 
and  not  affecting  any  country's  international  rights.  Such 
acts  may  run  counter  to  our  ideas  of  Hberty,  of  morality,  of 
humanity,  of  fair  business  conduct.  The  strongest  senti- 
ments and  interests  may  urge  interference  to  prevent  con- 
duct which  shocks  or  offends  us,  yet,  failing  some  special  and 


RIGHTS  AND  DUTIES  OF  NATIONS  421 

exceptional  ground  —  some  recognized  international  ground 
for  intervention  —  we  have  no  right  to  interfere,  because 
interference  would  be  an  infringement  upon  the  independent 
equality  of  the  other  state.  The  peace  and  order  of  the 
worid  require  that  each  nation  shall  mind  its  own  business 
and  refrain  from  attempting  to  impose  its  ideas  of  conduct 
upon  other  equal  independent  states.  This  is  not  because 
the  interference  in  the  particular  case  might  not  be  beneficial 
so  far  as  that  case  goes;  but  because  the  right  to  interfere  in 
one  case  carries  with  it  the  right  to  interfere  in  other  cases; 
the  determination  of  the  question  when  interference  is  justi- 
fiable would  necessarily  rest  with  the  interfering  power;  and 
in  the  exercise  of  such  a  right  all  weaker  states  would  become 
subject  to  the  control  of  the  stronger  and  ultimately  to  the 
control  of  the  strongest.  With  the  great  varieties  of  race  and 
custom  and  conceptions  of  social  morality  in  the  human 
family,  the  right  of  each  nation  to  conduct  its  own  internal 
affairs  according  to  its  own  ideas  is  of  the  essence  of  liberty. 
The  rule  which  prohibits  interference  by  other  nations,  with 
however  good  a  purpose,  is  a  rule  against  inevitable  tyranny. 
It  is  not  at  all  uncommon  that  the  best  impulses  and  senti- 
ments of  our  own  people  in  this  country  are  enlisted  in  favor 
of  action  by  our  government  which  would  do  infinitely  more 
harm  than  good,  by  breaking  down  the  barrier  which  the 
principle  of  the  independent  equality  of  states  presents 
against  the  evils  of  foreign  domination. 

On  the  other  hand  the  assertion  of  the  independent 
equality  of  states  implies  an  interest  on  the  part  of  all  states 
adhering  to  the  doctrine  in  having  it  preserved,  and  it  fol- 
lows necessarily  that  when  one  sovereign  state  is  dealing  not 
with  its  internal  affairs  but  with  its  international  relations 
and  violates  the  rule  of  right  as  against  another  equal  and 
independent  state,  all  other  equally  independent  states  have 
a  right  to  insist  that  the  international  rule  shall  be  observed. 


422  INTERNATIONAL  SUBJECTS 

and  such  insistence  is  not  interfering  with  the  quarrels  of 
others  but  is  an  assertion  of  their  own  rights.  In  each  case 
every  state  must  be  guided  by  its  own  circumstances  and 
interests  in  determining  how  far  it  will  go  in  supporting  its 
interference.  There  can,  however,  be  no  doubt  of  the  inter- 
national right  to  interfere  in  behalf  of  the  maintenance  of 
the  law.  So  far  as  it  is  possible  to  see  now,  if  the  issue  of  the 
present  conflict  leaves  the  fundamental  basis  of  international 
law  still  existent  the  possibility  of  securing  conformity  to  the 
rules  of  law  resting  upon  that  basis  will  depend  upon  the 
recognition  by  the  nations  in  general  of  the  duty  to  interfere 
and  insist  upon  the  observance  of  the  law  and  upon  the 
adoption  by  them  of  a  practice  in  conformity  with  that  duty. 
The  exercise  of  such  an  international  right  was  well  illus- 
trated when,  in  November,  1861,  the  Commander  of  the 
United  States  man-of-war  the  San  Jacinto  took  the  Con- 
federate commissioners,  Messrs.  Mason  and  Slidell,  from  the 
neutral  British  passenger  vessel,  the  Trent.  Upon  England's 
demanding  the  surrender  to  her  of  Mason  and  Slidell,  the 
Prussian  Minister  of  Foreign  Affairs,  Count  Bemstorff,  the 
father  of  the  present  German  Ambassador  to  the  United 
States,  wrote  to  the  Prussian  Minister  at  Washington  for 
communication  to  the  American  State  Department  a  letter, 
dated  at  Berlin,  December  25,  1861.    He  said: 

The  maritime  operations  undertaken  by  President  Lincoln  against  the 
Southern  seceding  States  could  not,  from  their  very  commencement,  but 
fill  the  King's  Government  with  apprehensions  lest  they  shoidd  result  in 
possible  prejudice  to  the  legitimate  interests  of  neutral  powers. 

These  apprehensions  have  unfortunately  proved  fully  justified  by  the 
forcible  seizure  on  board  the  neutral  mail-packet  the  Trent,  and  the  abduc- 
tion therefrom,  of  Messrs.  Mason  and  Slidell  by  the  Commander  of  the 
United  States  man-of-war  the  San  Jacinto. 

This  occurrence,  as  you  can  well  imagine,  has  produced  in  England  and 
throughout  Europe  the  most  profound  sensation,  and  thrown  not  cabinets 
only,  but  also  public  opinion,  into  a  state  of  the  most  excited  expectation. 
For,  although  at  present  it  b  England  only  which  is  immediately  con- 


RIGHTS  AND  DUTIES  OF  NATIONS  423 

cerned  in  the  matter,  yet  on  the  other  hand,  it  is  one  of  the  most  imp>ortant 
and  universally  recognized  rights  of  the  neutral  flag  which  has  been  called 
into  question. 

...  In  the  absence  of  any  reliable  information  we  were  in  doubt  as  to 
whether  the  Captain  of  the  San  Jacinto,  in  the  course  taken  by  him,  had 
been  acting  imder  orders  from  his  Government  or  not.  Even  now  we  pre- 
fer to  assume  that  the  latter  was  the  case.  Should  the  former  supp>osition, 
however,  turn  out  to  be  the  correct  one,  we  should  consider  ourselves  under 
the  necessity  of  attributing  greater  importance  to  the  occurrence,  and  to 
our  great  regret  we  should  find  ourselves  constrained  to  see  in  it  not  an 
isolated  fact  but  a  public  menace  offered  to  the  existing  rights  of  all 
neutrals. 

The  French  Foreign  Office  wrote,  on  December  3,  1861, 
to  the  French  Minister  in  Washington : 

The  wish  to  contribute  to  prevent  a  conflict,  imminent  perhaps  between 
two  powers  towards  which  it  is  animated  by  sentiments  equally  friendly, 
and  duty  to  maintain  certain  principles  essential  to  the  seciunty  of  neutrals 
with  the  effect  of  protecting  the  rights  of  its  own  flag  from  injury,  have  con- 
vinced it  (the  Government  of  the  Emperor)  after  matured  reflection,  that 
it  cannot  under  these  circumstances  remain  altogether  silent. 

M.  Thouvenel  then  discusses  the  merits  of  the  Trent 
affair,  and  proceeds: 

Not  wishing  to  enter  into  a  more  thorough  discussion  of  the  question 
raised  by  the  capture  of  MM.  Mason  and  SUdell,  I  have  said  enough  about 
it,  I  believe,  to  establish  that  the  Cabinet  at  Washington  would  not  be 
able,  without  infringing  upon  the  principles  for  which  all  neutral  pwwers 
are  equally  interested  in  assuring  respect  or  without  contradicting  its  own 
conduct  up  to  this  time,  to  give  its  approval  to  the  proceedings  of  the 
Commander  of  the  San  Jacinto. 

The  Austrian  Government  instructed  its  minister  in 
Washington  in  the  same  sense. 

Here  was  a  case  in  which  these  great  powers  asserted  un- 
hesitatingly their  interest  in  maintaining  the  common  right 
of  nations  to  have  the  rules  of  international  law  maintained. 
The  case  happened  to  be  free  from  those  obstacles  to  frank 
expression  which  have  been  so  frequently  presented  by  the 
delicate  adjustments  necessary  to  preserve  the  balance  of 


424  INTERNATIONAL  SUBJECTS 

power  in  Europe,  and  accordingly  the  powers  expressed  them- 
selves freely.  It  never  occurred  to  anybody  to  deny  that  they 
were  within  their  rights.  We  can  hardly  doubt  that  their 
expressions  had  a  material  effect  in  leading  to  the  action  of 
the  American  Government  in  preventing  war  between  Great 
Britain  and  the  United  States,  and  in  making  effective  a  rule 
of  law  which  protects  the  rights  of  all  neutrals. 

Any  nation  which  adheres  to  the  American  Institute's 
declaration  of  the  rights  and  duties  of  nations  rests  under  a 
duty,  whenever  the  law  which  declares  and  protects  those 
rights  is  cleariy  violated  or  threatened,  to  follow  some  such 
course  as  these  continental  nations  followed  in  the  Trent 
case.  This  is  not  a  duty  created  by  law  or  by  treaty.  There 
is  no  legal  obligation,  but  there  is  a  moral  obligation,  sup- 
ported by  enlightened  self-interest,  such  as  urges  every 
member  of  a  civil  community  who  is  worthy  of  respect  to 
give  his  voice,  his  influence,  his  example,  towards  the  pres- 
ervation of  the  law  through  which  alone  the  commimity 
can  continue  to  exist.  If  the  nations  really  wish  to  have 
peace  and  order  maintained  by  law  they  must  take  an 
interest  in  having  the  law  observed.  They  must  really  mean 
it,  and  act  accordingly. 

Furthermore  the  declaration  of  the  Institute  asserts  the 
subordination  of  nations  to  the  obligations  of  morality.  It 
denies  that  any  aggregation  of  human  beings  in  any  state, 
under  any  form  of  government,  can  be  superior  to  the  duties 
of  good  faith,  of  justice,  and  of  humanity.  I  shall  not  discuss 
that.  No  democracy,  no  republic,  no  form  of  government 
based  upon  the  rights  of  men,  can  continue  to  live  in  a 
world  which  rejects  that  view.  This  Republic  cannot  con- 
tinue to  live  in  a  world  which  rejects  that  view. 

It  is  to  be  observed  that  this  declaration,  in  which  repre- 
sentatives of  all  the  American  countries  unite,  asserts  for  all 
the  world  as  a  matter  of  general  public  right  the  same  prin- 


RIGHTS  AND  DUTIES  OF  NATIONS  425 

ciples  which,  somewhat  more  narrowly  and  upon  a  different 
ground,  the  famous  declaration  of  President  Monroe  asserted 
in  respect  of  the  American  republics.  The  message  of 
Monroe  aflBrmed  in  effect  that  all  the  American  states  were  to 
be  regarded  as  members  of  the  community  of  nations;  that 
they  were  entitled  to  live,  to  be  independent,  to  be  treated  as 
equals,  and  to  be  free  from  oppression  by  other  powers.  He 
gave  notice  that  the  attempt  by  any  European  power  to 
override  these  rights  of  the  American  states  would  be  re- 
garded as  unfriendly  to  the  United  States,  because  it  would 
be  dangerous  to  the  peace  and  safety  of  the  United  States. 
As  we  turn  from  the  narrow  limits  of  the  Monroe  Doctrine 
to  the  broader  field  of  universal  international  right  set  forth 
in  the  declaration  of  the  Institute,  with  the  terrible  lesson  of 
the  great  war  in  our  minds,  we  may  well  assert  that  the 
repudiation  of  these  principles,  the  violation  of  these  rules 
anywhere  within  the  confines  of  civilization,  is  dangerous  to 
the  peace  and  safety  of  the  whole  community  of  nations.  To 
the  efforts  of  the  community  of  nations  towards  defending 
its  peace  and  safety  against  the  destruction  of  the  fundamen- 
tal bases  of  its  public  right,  the  often  quoted  words  of  Mr. 
Calhoun  regarding  the  Monroe  Doctrine  are  applicable.  He 
said  in  the  Senate,  in  1848: 

Whether  you  will  resist  or  not,  and  the  measure  of  your  resistance  — 
whether  it  shall  be  by  negotiation,  remonstrance,  or  some  intermediate 
measure,  or  by  a  resort  to  arms;  all  this  must  be  determined  and  decided 
on  the  merits  of  the  question  itself.  This  is  the  only  wise  course.  .  .  . 
There  are  cases  of  interposition  where  I  would  resort  to  the  hazard  of  war 
with  all  its  calamities. 

Whether  the  United  States  will  soon  have  occasion  or  will 
long  have  the  ability  or  the  will  to  maintain  the  Monroe 
Doctrine  lies  in  the  uncertain  future.  Whether  it  will  be 
necessary  for  her  to  act  in  defense  of  the  Doctrine  or  abandon 
it,  may  well  be  determined  by  the  issue  of  the  present  war. 


426  INTERNATIONAL  SUBJECTS 

Whether  when  the  occasion  comes  she  will  prove  to  have  the 
ability  and  the  will  to  maintain  the  Doctrine,  depends  upon 
the  spirit  of  her  people,  their  capacity  for  patriotic  sacrifice, 
the  foresight  and  character  of  those  to  whose  initiative  in 
foreign  affairs  the  interests  of  the  people  are  entrusted. 

Whether  the  broader  doctrine  affirmed  by  the  American 
Institute  of  International  Law  is  to  be  made  effective  for  the 
protection  of  justice  and  liberty  throughout  the  world  depends 
upon  whether  the  vision  of  the  nations  shall  have  been  so  clar- 
ified by  the  terrible  lessons  of  these  years  that  they  can  rise 
above  small  struggles  for  advantage  in  international  affairs, 
and  realize  that  correlative  to  each  nation's  individual  right  is 
that  nation's  duty  to  insist  upon  the  observance  of  the  prin- 
ciples of  public  right  throughout  the  community  of  nations. 


FOREIGN  AFFAIRS,  1913-1916 

ADDRESS  AS  TEMPORARY  CHAffiMAN  OF  THE  NEW  YORK 
REPUBLICAN  CONVENTION,  NEW  YORK,  FEBRUARY  16,  1916 

Only  those  portions  of  this  address  which  deal  with  international  matters  are 
included  in  this  volume. 

WE  are  entering  upon  a  contest  for  the  election  of  a 
president  and  the  control  of  government  under  condi- 
tions essentially  new  in  the  experience  of  our  country.  The 
forms  which  we  are  about  to  follow  are  old  and  famihar;  but 
the  grounds  for  action,  the  demand  of  great  events  for  deci- 
sion upon  national  conduct,  the  moral  forces  urging  to  a 
solution  of  vaguely  outlined  questions,  the  tremendous  con- 
sequences of  wisdom  or  folly  in  national  policy,  all  these  are 
new  to  the  great  mass  of  American  voters.  Never  since  1864 
has  an  election  been  fraught  with  consequences  so  vital  to 
national  life.  All  the  ordinary  considerations  which  play  so 
great  a  part  in  our  presidential  campaigns  are  and  ought  to 
be  dwarfed  into  insignificance.  .  .  . 

When  a  president  and  secretary  of  state  have  been  law- 
fully established  in  oflBce  the  power  of  initiative  in  foreign 
affairs  rests  with  them.  The  nation  is  in  their  hands.  Theirs 
is  the  authority  and  theirs  the  duty  to  adopt  and  act  upon 
policies,  subject  to  such  laws  as  Congress  may  enact  within 
constitutional  limits.  Parliamentary  opposition  can  take  no 
aflSrmative  step;  can  accomplish  no  affirmative  action.  The 
expression  of  pubUc  opinion  can  do  nothing  except  as  it 
produces  an  influence  upon  the  minds  of  those  officers  who 
have  the  lawful  power  to  conduct  our  foreign  relations. 
Their  policy  is  the  country's  policy  because  it  is  they  who 
are  authorized  to  act  for  the  country.  While  they  are  work- 
Mr 


428  INTERNATIONAL  SUBJECTS 

ing  out  their  policy  all  opposition,  all  criticism,  all  condem- 
nation, are  at  the  risk  of  weakening  the  case  of  one's  own 
country  and  frustrating  the  efforts  of  its  lawful  representa- 
tives to  succeed  in  what  they  are  seeking  to  accomplish  for 
the  country's  benefit.  An  American  should  wish  the  repre- 
sentatives of  his  country  to  succeed  whatever  may  be  their 
party  unless  there  be  wrongdoing  against  conscience.  How- 
ever much  he  may  doubt  the  wisdom  of  their  course  he  should 
help  them  where  he  can  and  refrain  from  placing  obstacles 
in  their  way.  But  when  the  president  and  secretary  of  state 
have  acted,  and  seek  a  new  grant  of  power,  they  and  the 
party  which  is  responsible  for  them  must  account  for  their 
use  of  power  to  the  people  from  whom  it  came,  and  the 
people  must  pass  judgment  upon  them,  and  then  full  and 
frank  public  discussion  becomes  the  citizen's  duty. 

The  United  States  had  rights  and  duties  in  Mexico. 
More  than  forty  thousand  of  our  citizens  had  sought  their 
fortunes  and  made  their  homes  there.  A  thousand  millions 
of  American  capital  had  been  invested  in  that  rich  and  pro- 
ductive country,  and  millions  of  income  from  these  enter- 
prises were  annually  returned  to  the  United  States  not 
merely  for  the  benefit  of  the  investors,  but  for  the  enrich- 
ment of  our  whole  country  and  all  its  production  and 
enterprise.  But  revolution  had  come,  and  factional  warfare 
was  rife.  Americans  had  been  murdered,  American  property 
had  been  wantonly  destroyed,  the  lives  and  property  of  all 
Americans  in  Mexico  were  in  danger.  That  was  the  situation 
when  Mr.  Wilson  became  president  in  March,  1913.  His 
duty  then  was  plain.  It  was,  first,  to  use  his  powers  as 
president,  to  secure  protection  for  the  lives  and  property  of 
Americans  in  Mexico  and  to  require  that  the  rules  of  law 
and  stipulations  of  treaties  should  be  observed  by  Mexico 
towards  the  United  States  and  its  citizens.  His  duty  was, 
second,  as  the  head  of  a  foreign  power  to  respect  the  inde- 


FOREIGN  AFFAIRS,  1913-1916  429 

pendence  of  Mexico,  to  refrain  from  all  interference  with  her 
internal  affairs,  except  as  he  was  justified  by  the  law  of 
nations  for  the  protection  of  American  rights.    The  President 
of  the  United  States  failed  to  observe  either  of  those  duties. 
He  dehberately   abandoned  them  both  and  followed  an 
entirely  different  and  inconsistent  purpose.    He  intervened 
in  Mexico  to  aid  one  faction  in  civil  strife  against  another. 
He  undertook  to  puJl  down  Huerta  and  set  Carranza  up  in 
his  place.    Huerta  was  in  possession.    He  claimed  to  be  the 
constitutional  president  of  Mexico.     He  certainly  was  the 
de  facto  president  of  Mexico.    Rightly  or  wrongly,  good  or 
bad,  he  was  there.    From  the  north  Carranza  and  a  group  of 
independent  chieftains  were  endeavoring  to  pull  down  the 
power  of  Huerta.    President  Wilson  took  sides  with  them  in 
pulling  down  that  power.     In  August,  1913,  through  Mr. 
John  Lind,  he  presented  to  Huerta  a  communication  which 
was  in  substance  a  demand  that  Huerta  should  retire  per- 
manently from  the  government  of  Mexico.    When  Huerta 
refused,  the  power  of  the  United  States  was  applied  to  turn 
him  out.     Foreign  nations  were  induced  to  refuse  to  his 
government  the  loans  of  money  necessary  to  repair  the 
ravages  of  war  and  establish  order.    Arms  and  munitions  of 
war  were  freely  furnished  to  the  northern  forces  and  withheld 
from  Huerta.    Finally  the  President  sent  our  army  and  navy 
to  invade  Mexico  and  capture  its  great  seaport.  Vera  Cruz, 
and  hold  it  and  throttle  Mexican  commerce  until  Huerta  fell. 
The  government  of  the  United  States  intervened  in  Mexico 
to  control  the  internal  affairs  of  that  independent  country 
and  to  enforce  the  will  of  the  American  President  in  those 
affairs  by  threat,  by  economic  pressure,  and  by  force  of  arms. 
Upon  what  claim  of  right  did  this  intervention  proceed  ? 
Not  to  secure  respect  for  American  rights;   not  to  protect 
the  lives  or  property  of  our  citizens;  not  to  assert  the  law  of 
nations;  not  to  compel  observance  of  the  law  of  humanity. 


430  INTERNATIONAL  SUBJECTS 

On  the  contrary,  Huerta*s  was  the  only  power  in  Mexico  to 
which  appjeal  could  be  made  for  protection  of  life  or  property. 
That  was  the  only  power  which  in  fact  did  protect  either 
American  or  European  or  Mexican.    It  was  only  within  the 
territory  where  Huerta  ruled  that  comparative  peace  and 
order  prevailed.    The  territory  over  which  the  armed  power 
of  Carranza  and  Villa  and  their  associates  extended  was  the 
theatre  of  the  most  appalling  crimes.     Bands  of  robbers 
roved  the  country  with  unbridled  license.    Americans  and 
Mexicans  alike  were  at  their  mercy,  and  American  men  were 
murdered  and  American  women  were  outraged  with  im- 
punity.   Thousands  were  reduced  to  poverty  by  the  wanton 
destruction  of  the  industries  through  which  they  lived.    The 
payment  of  blackmail  was  the  only  protection  of  property 
against  burnings  and  robbery.    No  one  in  authority  could  or 
would  give  protection  or  redress.    It  had  become  perfectly 
plain  that  the  terms  upon  which  both  Carranza  and  Villa 
held  their  supporters,  were  unrestricted  opportunity  and 
license  for  murder,  robbery,  and  lust.    Yet  the  government 
of  the  United  States  ignored,  condoned,  the  murder  of  Ameri- 
can men  and  the  rape  of  American  women  and  destruction  of 
American  property  and  insult  to  American  officers  and  defile- 
ment of  the  American  flag  and  joined  itself  to  the  men  who 
were  guilty  of  all  these  things  to  pull  down  the  power  of 
Huerta.    Why  ?    The  President  himself  has  told  us.    It  was 
because  he  adjudged  Huerta  to  be  a  usurper;   because  he 
deemed  that  the  common  people  of  Mexico  ought  to  have 
greater  participation  in  government  and  share  in  the  land; 
and  he  beheved  that  Carranza  and  Villa  would  give  them 
these  things.    We  must  all  sympathize  with  these  sentiments, 
but  there  is  nothing  more  dangerous  than  misplaced  senti- 
ment.   Of  all  men  in  this  world,  the  man  who  had  vested  in 
him  the  executive  power  of  the  United  States  was  least  at 
liberty  to  sit  in  judgment  of  his  own  motion  upon  the  title  of 


FOREIGN  AFFAIRS,  1913-1916  431 

a  claimant  to  the  Mexican  presidency  or  to  reform  the  land 
laws  of  Mexico. 

The  results  of  this  interference  were  most  mifortunate.    If 
our  government  had  sent  an  armed  force  into  Mexico  to 
protect  American  life  and  honor  we  might  have  been  opposed 
but  we  should  have  been  understood  and  respected  by  the 
people  of  Mexico,  because  they  would  have  reahzed  that  we 
were  acting  within  our  international  rights  and  performing 
a  nation's  duty  for  the  protection  of  its  own  people;   but 
when  the  President  sent  an  anned  force  into  Mexico  to 
detennine  the  Mexican  presidential  succession  he  created 
resentment  and  distrust  of  motives  among  all  classes  and 
sections  of  the  Mexican  people.    When  our  army  landed  at 
Vera  Cruz,  Carranza  himself,  who  was  to  be  the  chief  benefi- 
ciary of  the  act,  publicly  protested  against  it.    So  strong  was 
the  resentment  that  he  could  not  have  kept  his  followers 
otherwise.     When  Huerta  had  fallen,  the  new  government 
which  for  the  day  had  succeeded  to  his  place  peremptorily 
demanded  the  withdrawal  of  the  American  troops.     The 
universal  sentiment  of  Mexicans  required  that  peremptory 
demand,  and  the  troops  were  withdrawn.    Still  worse  than 
that,  the  taking  of  Vera  Cruz  destroyed  confidence  in  the 
sincerity  of  the  American  government  in  Mexico  because 
every  intelligent  man  in  Mexico  believed  that  the  avowed 
reason  for  the  act  was  not  the  real  reason.     The  avowed 
piupose  was  to  compel  a  salute  to  the  American  flag.    I  will 
state  the  circumstances:  On  the  ninth  of  April,  1914,  a  boat's 
crew  from  the  Dolphin  landed  at  a  wharf  in  Tampico  to  take 
off  supplies.    The  use  of  that  wharf  had  been  prohibited,  and 
the  Mexican  officer  in  charge  of  the  wharf  put  the  crew  under 
arrest,  but  a  higher  officer  ordered  him  to  hold  the  boat's 
crew  at  the  wharf  and  await  instructions.    Within  an  hour 
and  a  half  the  crew  was  set  free.    No  injury  or  indignity  was 
suffered  except  the  fact  of  the  arrest.    Immediate  amends 


432  INTERNATIONAL  SUBJECTS 

were  made.  The  Mexican  officer  in  command  at  Tampico 
apologized;  General  Huerta's  government  apologized;  the 
officer  who  made  the  arrest  was  himself  arrested  and  his 
pmiishment  promised.  The  admiral  in  command  of  om*  fleet 
at  Tampico  demanded  more  public  amends  through  a  salute 
to  our  flag,  but  there  ensued  a  discussion  as  to  the  facts  and 
as  to  the  character  of  the  salute  which  the  circumstances 
demanded,  the  number  of  guns,  and  how,  if  at  all,  the  salute 
was  to  be  returned.  While  that  discussion  was  pending  and 
avowedly  because  of  that  incident  the  American  Government 
presented  a  twenty-four  hour  ultimatum  and  landed  an 
armed  force  and  captured  the  city  of  Vera  Cruz.  Three 
hundred  Mexicans  were  reported  killed;  seventeen  United 
States  marines  were  killed  and  many  were  wounded.  At 
that  very  time  Mr.  Bryan,  with  the  President's  approval,  was 
signing  treaties  with  half  the  world  agreeing  that  if  any  con- 
troversy should  arise  it  should  be  submitted  to  a  joint  com- 
mission and  no  action  should  be  taken  until  after  a  full  year 
had  elapsed.  This  controversy  arose  on  the  ninth  of  April, 
and  on  the  twenty-first  of  the  same  month  Vera  Cruz  was 
taken.  Several  times  the  troops  of  Carranza  and  Villa  had 
arrested  and  imprisoned  American  consular  officers  and  torn 
down  the  American  flags  from  the  consulates  and  trampled 
them  in  the  mire,  with  indescribable  indignities.  The  proofs 
were  in  our  hands  and  no  attention  was  paid  to  them.  Many 
times  soldiers  of  the  United  States,  in  uniform,  on  duty,  had 
been  shot  and  killed  or  wounded  by  soldiers  of  Carranza  and 
Villa  across  the  border.  More  than  fifty  of  them  have  been 
killed  in  this  way  and  no  attention  has  been  paid  to  it.  The 
demand  of  a  salute  to  the  flag  was  never  heard  of  again  after 
Vera  Cruz  was  captured.  There  is  not  an  inteUigent  man  in 
Mexico  who  beheves  that  the  dispute  about  the  salute  was 
the  real  reason  for  the  capture  of  Vera  Cruz.  Is  there  one 
here  who  doubts  that  the  alleged  cause  was  but  a  pretext 


FOREIGN  AFFAIRS,  1913-1916  488 

and  that  the  real  cause  was  the  purpose  to  turn  Huerta  out 
of  oflBce  ?  The  people  of  Mexico,  who  saw  their  unoffending 
city  captured  by  force  of  arms,  three  hundred  of  its  people 
slain,  their  soil  violated,  a  foreign  flag  floating  over  their 
great  seaport,  upon  what  they  felt  to  be  a  false  pretense, 
were  misled  into  imputing  a  more  sinister  purpose  still  —  to 
secure  control  of  Mexico  for  the  United  States;  and  they 
believed  that  when  the  American  troops  departed,  that  pur- 
pose was  abandoned  through  fear.  With  the  occupation  of 
Vera  Cruz  the  moral  power  of  the  United  States  in  Mexico 
ended.  We  were  then  and  we  are  now  hated  for  what  we  did 
to  Mexico,  and  we  were  then  and  we  are  now  despised  for 
our  feeble  and  irresolute  failure  to  protect  the  hves  and 
rights  of  our  citizens.  No  flag  is  so  dishonored  and  no 
citizenship  so  little  worth  the  claiming  in  Mexico  as  ours. 
And  that  is  why  we  have  failed  in  Mexico. 

Incredible  as  it  seems,  Huerta  had  been  turned  out  by  the 
assistance  of  the  American  government  without  any  guaran- 
tees from  the  men  who  were  to  be  set  up  in  his  place,  and  so 
the  murdering  and  burning  and  ravishing  have  gone  on  to 
this  day.  After  Huerta  had  fallen  and  the  Vera  Cruz 
expedition  had  been  withdrawn,  President  Wilson  announced 
that  no  one  was  entitled  to  interfere  in  the  affairs  of  Mexico; 
that  she  was  entitled  to  settle  them  herself.  He  disclaims  all 
responsibility  for  what  happens  in  Mexico  and  contents  him- 
self with  a  policy  of  Watchful  Waiting.  But  who  can  inter- 
fere in  a  quarrel  and  help  some  contestants  and  destroy 
others  and  then  absolve  himself  from  responsibihty  for  the 
results  ?  It  is  not  by  force  of  circimastances  over  which  we 
had  no  control,  but  largely  because  the  American  Administra- 
tion intervened  by  force  to  control  the  internal  affairs  of  that 
country  instead  of  asserting  and  maintaining  American  rights 
that  we  have  been  brought  to  our  present  pass  of  confusion 
and  humiliation  over  Mexico. 


434  INTERNATIONAL  SUBJECTS 

And  for  the  death  and  outrage,  the  suflFering  and  ruin  of 
our  own  brethren,  the  hatred  and  contempt  for  our  country, 
and  the  dishonor  of  our  name  in  that  land,  the  Administration 
at  Washington  shares  responsibility  with  the  inhuman  brutes 
with  whom  it  made  common  cause. 

When  we  turn  to  the  Administration's  conduct  of  foreign 
affairs  incident  to  the  great  war  in  Europe  we  cannot  fail  to 
perceive  that  there  is  much  dissatisfaction  among  Americans. 
Some  are  dissatisfied  for  specific  reasons,  some  with  a  vague 
impression  that  our  diplomacy  has  been  inadequate.  Dis- 
satisfaction is  not  in  itself  ground  for  condemnation.  The 
best  work  of  the  diplomatist  often  fails  to  receive  public 
approval  at  the  time  and  must  look  to  a  calm  review  in  the 
dispassionate  future  for  recognition  of  its  merit.  The  situa- 
tion created  by  the  war  has  been  difficult  and  trying.  Much 
of  the  correspondence  of  the  State  Department,  especially 
since  Mr.  Lansing  took  charge,  has  been  characterized  by 
accm-ate  learning  and  skillful  statement  of  specific  American 
rights.  Every  one  in  the  performance  of  new  and  unprece- 
dented duties  is  entitled  to  generous  allowance  for  unavoid- 
able shortcomings  and  errors.  No  one  should  be  held  to  the 
accomplishment  of  the  impossible.  The  question  whether  dis- 
satisfaction is  just  or  unjust  is  to  be  determined  upon  an  exam- 
ination of  the  great  lines  of  policy  which  have  been  followed 
and  upon  considering  whether  the  emergencies  of  the  time 
have  been  met  with  foresight,  wisdom,  and  decisive  courage. 
If  these  are  lacking  as  guides,  all  the  learning  of  the  institutes 
and  the  highest  skill  in  correspondence  are  of  little  avail. 

A  study  of  the  Administration's  policy  towards  Europe 
since  July,  1914,  reveab  three  fundamental  errors.  First, 
the  lack  of  foresight  to  make  timely  provision  for  backing 
up  American  diplomacy  by  actual  or  assured  military  and 
naval  force.  Second,  the  forfeiture  of  the  world's  respect 
for  our  assertion  of  rights  by  pursuing  the  policy  of  making 


FOREIGN  AFFAIRS,  1913-1916  435 

threats  and  failing  to  make  them  good.  Third,  a  loss  of  the 
moral  forces  of  the  civilized  world  through  failure  to  truly 
interpret  to  the  world  the  spirit  of  the  American  democracy 
in  its  attitude  towards  the  terrible  events  which  accompanied 
the  early  stages  of  the  war. 

First,  as  to  power. 

When  the  war  in  Europe  began,  free,  peaceable  httle 
Switzerland  instantly  mobilized  upon  her  frontier  a  great 
army  of  trained  citizen  soldiers.  Sturdy  little  Holland  did 
the  same,  and,  standing  within  the  very  sound  of  the  guns, 
both  have  kept  their  territory  and  their  independence  in- 
violate. Nobody  has  run  over  them  because  they  have 
made  it  apparent  that  the  cost  would  be  too  great. 

Great,  peaceable  America  was  farther  removed  from  the 
conflict,  but  her  trade  and  her  citizens  travelled  on  every  sea. 
Ordinary  knowledge  of  European  affairs  made  it  plain  that 
the  war  was  begxm  not  by  accident,  but  with  purpose  which 
would  not  soon  be  relinquished.  Ordinary  knowledge  of 
military  events  made  it  plain  from  the  moment  when  the 
tide  of  German  invasion  turned  from  the  Battle  of  the 
Mame  that  the  conflict  was  certain  to  be  long  and  desperate. 
Ordinary  knowledge  of  history  —  of  our  own  history  during 
the  Napoleonic  wars  —  made  it  plain  that  in  that  conflict 
neutral  rights  would  be  worthless  unless  powerfully  main- 
tained. All  the  worid  had  fair  notice  that,  as  against  the 
desperate  belligerent  resolve  to  conquer,  the  law  of  nations 
and  the  law  of  humanity  interposed  no  effective  barriers  for 
the  protection  of  neutral  rights.  Ordinary  practical  sense  in 
the  conduct  of  affairs  demanded  that  such  steps  should  be 
taken  that  behind  the  peaceable  assertion  of  oiu*  country's 
rights,  its  independence  and  its  honor,  should  stand  power, 
manifest  and  available,  warning  the  whole  worid  that  it 
would  cost  too  much  to  press  aggression  too  far.  The  Demo- 
cratic government  at  Washington  did  not  see  it.    Others  saw 


436  INTEItNATIONAL  SUBJECTS 

it  and  their  opinions  fornid  voice.  Mr.  Gardner  urged  it; 
Mr.  Lodge  urged  it;  Mr.  Stimson  urged  it;  Mr.  Roosevelt 
urged  it;  but  their  argument  and  urgency  were  ascribed  to 
political  motives;  and  the  President  described  them  with  a 
sneer  as  being  nervous  and  excited. 

But  the  warning  voices  would  not  be  stilled.  The  opinion 
that  we  ought  no  longer  to  remain  defenseless  became  public 
opinion.  Its  expression  grew  more  general  and  insistent,  and 
finally  the  President,  not  leading,  but  following,  has  shifted 
his  ground,  has  reversed  his  position,  and  asks  the  country 
to  prepare  against  war.  God  grant  that  he  be  not  too  late. 
But  the  Democratic  party  has  not  shifted  its  ground.  A 
large  part  of  its  members  in  Congress  are  endeavoring  now 
to  sidetrack  the  movement  for  national  preparedness;  to 
muddle  it  by  amendment  and  turn  it  into  channels  which 
will  produce  the  least  possible  result  in  the  increase  of  na- 
tional power  of  defense.  What  sense  of  effectiveness  in  this 
effort  can  we  gather  from  the  presence  of  Josephus  Daniels 
at  the  most  critical  post  of  all  —  the  head  of  the  Navy  De- 
partment; when  we  see  that  where  preparation  has  been 
possible  it  has  not  been  made;  when  we  see  that  construction 
of  war  ships  already  authorized  has  not  been  pressed,  and 
in  some  cases  after  long  delay  has  not  even  been  begun  ? 

If  an  increase  of  oiu*  country's  power  to  defend  itself 
against  aggression  is  authorized  by  the  present  Congress  it 
must  be  largely  through  Repubhcan  votes,  because  the 
representatives  of  the  Republican  party  in  Washington 
stand  for  the  country  no  matter  who  is  president;  and  all 
the  traditions  and  convictions  of  that  party  are  for  national 
power  and  duty  and  honor. 

As  to  the  poHcy  of  threatening  words  without  deeds. 
When  Germany  gave  notice  of  her  purpose  to  sink  mer- 
chant vessels  on  the  high  seas  without  safeguarding  the  lives 


FOREIGN  AFFAIRS,  1913-1916  437 

of  innocent  passengers,  our  Government  replied  on  the  tenth 
of  February,  one  year  ago,  in  the  following  words: 

The  Government  of  the  United  States  .  .  .  feels  it  to  be  its  duty  to 
call  the  attention  of  the  Imperial  German  Government,  with  sincere 
respect  and  the  most  friendly  sentiments  but  very  candidly  and  earnestly, 
to  the  very  serious  possibilities  of  the  course  of  action  apparently  con- 
templated under  that  proclamation. 

The  Government  of  the  United  States  views  those  possibilities  with 
such  grave  concern  that  it  feels  it  to  be  its  privilege,  and  indeed  its  duty 
in  the  circumstances,  to  request  the  Imperial  German  Government  to  con- 
sider before  action  is  taken  the  critical  situation  in  respect  of  the  relations 
between  this  country  and  Germany  which  might  arise  were  the  German 
naval  forces,  in  carrying  out  the  jKjUcy  foreshadowed  in  the  Admiralty's 
proclamation,  to  destroy  any  merchant  vessel  of  the  United  States  or 
cause  the  death  of  American  citizens. 

...  If  such  a  deplorable  situation  should  arise,  the  Imperial  German 
Government  can  readily  appreciate  that  the  Government  of  the  United 
States  would  be  constrained  to  hold  the  Imperial  German  Government 
to  a  strict  accountability  for  such  acts  of  their  naval  authorities  and  to 
take  any  steps  it  might  be  necessary  to  take  to  safeguard  American  lives 
and  prop)erty  and  to  secure  to  American  citizens  the  full  enjoyment  of 
their  acknowledged  rights  on  the  high  seas. 

By  all  the  usages  and  traditions  of  diplomatic  intercourse 
those  words  meant  action.  They  informed  Germany  in 
unmistakable  terms  that  in  attacking  and  sinking  vessels  of 
the  United  States  and  in  destroying  the  hves  of  American 
citizens  lawfully  travelling  upon  merchant  vessels  of  other 
countries,  she  would  act  at  her  peril.  They  pledged  the  power 
and  courage  of  America,  with  her  hundred  milUon  people  and 
her  vast  wealth,  to  the  protection  of  her  citizens,  as  during 
all  her  history  through  the  days  of  her  youth  and  weakness 
she  had  always  protected  them. 

On  the  twenty-eighth  of  March,  the  passenger  steamer 
Falaba  was  torpedoed  by  a  German  submarine,  and  an 
American  citizen  was  killed,  but  nothing  was  done.  On  the 
twenty-eighth  of  April,  the  American  vessel  Gushing  was 
attacked  and  crippled  by  a  German  aeroplane.    On  the  first 


438  INTERNATIONAL  SUBJECTS 

of  May,  the  American  vessel  Gulflighi  was  torpedoed  and 
sunk  by  a  German  submarine,  and  two  or  more  Americans 
were  killed,  yet  nothing  was  done.  On  the  seventh  of  May, 
the  Lusitania  was  torpedoed  and  sunk  by  a  German  sub- 
marine, and  more  than  one  hundred  Americans  and  eleven 
hundred  other  non-combatants  were  drowned.  The  very 
thing  which  our  Government  had  warned  Germany  she 
must  not  do,  Germany  did  of  set  purpose  and  in  the  most 
contemptuous  and  shocking  way.  Then,  when  all  America 
was  stirred  to  the  depths,  our  Government  addressed  another 
note  to  Germany.  It  repeated  its  assertion  of  American 
rights,  and  renewed  its  bold  declaration  of  purpose.  It  de- 
clared again  that  the  American  Government  "  must  hold 
the  Imperial  German  Government  to  a  strict  accountability 
for  any  infringement  of  those  rights,  intentional  or  inci- 
dental," and  it  declared  that  it  would  not  "  omit  any  word 
or  any  act  necessary  to  the  performance  of  its  sacred  duty  of 
maintaining  the  rights  of  the  United  States  and  its  citizens 
and  of  safeguarding  their  free  exercise  and  enjoyment.** 

Still  nothing  was  done,  and  a  long  and  technical  corre- 
spondence ensued;  haggling  over  petty  questions  of  detail, 
every  American  note  growing  less  and  less  strong  and  per- 
emptory, imtil  the  Arabic  was  torpedoed  and  sunk,  and  more 
American  lives  were  destroyed,  and  still  nothing  was  done, 
and  the  correspondence  continued  until  the  Allied  defense 
against  German  submarine  warfare  made  it  improfitable 
and  led  to  its  abandonment,  and  the  correspondence  is 
apparently  approaching  its  end  without  securing  even  that 
partial  protection  for  the  future  which  might  be  found  in  an 
admission  that  the  destruction  of  the  Lusitania  was  for- 
bidden by  law.  The  later  correspondence  has  been  conducted 
by  our  State  Department  with  dignity,  but  it  has  been  futile. 
An  admission  of  hability  for  damages  has  been  secured,  but 
the  time  for  real  protection  to  American  rights  has  long  since 


FOREIGN  AFFAIRS,  1913-1916  439 

passed.  Our  Government  undertook  one  year  ago  to  prevent 
the  destruction  of  American  life  by  submarine  attack,  and 
now  that  the  attempt  has  failed  and  our  citizens  are  long 
since  dead  and  the  system  of  attack  has  fallen  of  its  own 
weight,  there  is  small  advantage  in  discussing  whether  we 
shall  or  shall  not  have  an  admission  that  it  was  unlawful 
to  kill  them. 

The  brave  words  with  which  we  began  the  controversy  had 
produced  no  effect,  because  they  were  read  in  the  hght  of 
two  extraordinary  events.  One  was  the  report  of  the  Aus- 
trian Ambassador,  Mr.  Dumba,  to  his  government,  that 
when  the  American  note  of  February  tenth  was  received,  he 
asked  the  Secretary  of  State,  Mr.  Bryan,  whether  it  meant 
business,  and  received  an  answer  which  satisfied  him  that 
it  did  not,  but  was  intended  for  effect  at  home  in  America. 

The  other  event  was  the  strange  and  unfortunate  declara- 
tion of  the  President  in  a  public  speech  in  Philadelphia  the 
fourth  day  after  the  sinking  of  the  LusUania  that  "  a  man 
may  be  too  proud  to  fight."  Whatever  the  Austrian  Am- 
bassador was  in  fact  told  by  the  Secretary  of  State,  the 
impression  which  he  reported  was  supjwrted  by  the  events 
which  followed.  Whatever  the  President  did  mean,  his 
declaration,  made  in  public  at  that  solemn  time,  amid  the 
horror  and  mourning  of  all  our  people  over  the  murder  of 
their  brethren,  was  accepted  the  world  over  as  presenting 
the  attitude  of  the  American  government  towards  the  pro- 
tection of  the  life  and  liberty  of  American  citizens  in  the 
exercise  of  their  just  rights,  and  throughout  the  world  the 
phrase  "  too  proud  to  fight "  became  a  by-word  of  derision 
and  contempt  for  the  Government  of  the  United  States. 

Later,  in  another  theatre  of  war  —  the  Mediterranean  — 
Austria,  and  perhaps  Turkey  also,  resumed  the  practice. 
The  Ancona  and  then  the  Persia  were  destroyed,  and  more 
Americans  were  killed.    Why  should  they  not  resume  the 


440  INTERNATIONAL  SUBJECTS 

practice  ?  They  had  learned  to  believe  that,  no  matter  how 
shocked  the  American  Government  might  be,  its  resolution 
would  expend  itself  in  words.  They  had  learned  to  beheve 
that  it  was  safe  to  kill  Americans,  —  and  the  world  beheved 
with  them.  Measured  and  restrained  expression,  backed  to 
the  full  by  serious  purpose,  is  strong  and  respected.  Extreme 
and  belligerent  expression,  unsupported  by  resolution,  is 
weak  and  without  effect.  Np  man  should  draw  a  pistol  who 
dares  not  shoot.  The  government  that  shakes  its  fist  first 
and  its  finger  afterwards  falls  into  contempt.  Our  diplo- 
macy has  lost  its  authority  and  influence  because  we  have 
been  brave  in  words  and  irresolute  in  action.  Men  may  say 
that  the  words  of  our  diplomatic  notes  were  justified;  men 
may  say  that  our  inaction  was  justified;  but  no  man  can 
say  that  both  our  words  and  our  inaction  were  wise  and 
creditable. 

I  have  said  that  this  Government  lost  the  moral  forces  of 
the  world  by  not  truly  interpreting  the  spirit  of  the  American 
democracy. 

The  American  democracy  stands  for  something  more  than 
beef  and  cotton  and  grain  and  manufactures;  stands  for 
something  that  cannot  be  measured  by  rates  of  exchange, 
and  does  not  rise  or  fall  with  the  balance  of  trade.  The 
American  people  achieved  liberty  and  schooled  themselves 
to  the  service  of  justice  before  they  acquired  wealth,  and 
they  value  their  country's  liberty  and  justice  above  all  their 
pride  of  possessions.  Beneath  their  comfortable  optimism 
and  apparent  indifference  they  have  a  conception  of  their 
great  republic  as  brave  and  strong  and  noble  to  hand  down 
to  their  children  the  blessings  of  freedom  and  just  and  equal 
laws.  They  have  embodied  their  principles  of  government 
in  fixed  rules  of  right  conduct  which  they  jealously  preserve, 
and,  with  the  instinct  of  individual  freedom,  they  stand  for 


FOREIGN  AFFAIRS,  1913-1916  441 

a  government  of  laws  and  not  of  men.  They  deem  that  the 
moral  laws  which  formulate  the  duties  of  men  towards  each 
other  are  binding  upon  nations  equally  with  individuals. 
Informed  by  their  own  experience,  confirmed  by  their  obser- 
vation of  international  life,  they  have  come  to  see  that  the 
independence  of  nations,  the  liberty  of  their  peoples,  justice 
and  humanity,  cannot  be  maintained  upon  the  good  nature, 
the  kindly  feeling,  of  the  strong  towards  the  weak;  that  real 
independence,  real  hberty,  cannot  rest  upon  suflferance;  that 
peace  and  liberty  can  be  preserved  only  by  the  authority  and 
observance  of  rules  of  national  conduct  founded  upon  the 
principles  of  justice  and  humanity;  only  by  the  establish- 
ment of  law  among  nations,  responsive  to  the  enlightened 
pubhc  opinion  of  mankind.  To  them  liberty  means  not 
liberty  for  themselves  alone,  but  for  all  who  are  oppressed. 
Justice  means  not  justice  for  themselves  alone,  but  a  shield 
for  all  who  are  weak  against  the  aggression  of  the  strong. 
When  their  deeper  natures  are  stirred  they  have  a  spiritual 
vision  in  which  the  spread  and  perfection  of  free  self-govern- 
ment shall  rescue  the  humble  who  toil  and  endure,  from  the 
hideous  wrongs  inflicted  upon  them  by  ambition  and  lust  for 
power,  and  they  cherish  in  their  heart  of  hearts  an  ideal  of 
their  country  loyal  to  the  mission  of  liberty  for  the  lifting  up 
of  the  oppressed  and  bringing  in  the  rule  of  righteousness 
and  peace. 

To  this  people,  the  invasion  of  Belgium  brought  a  shock 
of  amazement  and  horror.  The  people  of  Belgium  were 
peaceable,  industrious,  law-abiding,  self-governing  and  free. 
They  had  no  quarrel  with  any  one  on  earth.  They  were 
attacked  by  overwhelming  military  power;  their  country 
was  devastated  by  fire  and  sword;  they  were  slain  by  tens 
of  thousands;  their  independence  was  destroyed  and  their 
liberty  was  subjected  to  the  rule  of  an  invader,  for  no  other 
cause  than  that  they  defended  their  admitted  rights.    There 


442  INTERNATIONAL  SUBJECTS 

was  no  question  of  fact;  there  was  no  question  of  law;  there 
was  not  a  plausible  pretense  of  any  other  cause.  The 
admitted  rights  of  Belgium  stood  in  the  way  of  a  mightier 
nation's  purpose;  and  Belgium  was  crushed.  When  the  true 
nature  of  these  events  was  realized,  the  people  of  the  United 
States  did  not  hestitate  in  their  feeling  or  in  their  judgment. 
Deepest  sympathy  with  downtrodden  Belgium  and  stem 
condemnation  of  the  invader  were  practically  universal. 
Wherever  there  was  respect  for  law,  it  revolted  against  the 
wrong  done  to  Belgium.  Wherever  there  was  true  passion  for 
liberty,  it  blazed  out  for  Belgium.  Wherever  there  was  hu- 
manity, it  mourned  for  Belgium.  As  the  realization  of  the 
truth  spread,  it  carried  a  vague  feeling  that  not  merely 
sentiment  but  loyalty  to  the  eternal  principles  of  right  was 
involved  in  the  attitude  of  the  American  people.  And  it 
was  so,  for  if  the  nations  were  to  be  indiflFerent  to  this  first 
great  concrete  case  for  a  century  of  military  power  trampling 
under  foot  at  will  the  independence,  the  liberty,  and  the  life 
of  a  peaceful  and  unoffending  people  in  repudiation  of  the 
faith  of  treaties  and  the  law  of  nations  and  of  morality  and 
of  humanity  —  if  the  public  opinion  of  the  world  was  to 
remain  silent  upon  that,  neutral  upon  that,  then  all  talk 
about  peace  and  justice  and  international  law  and  the  rights 
of  man,  the  progress  of  humanity  and  the  spread  of  liberty 
is  idle  patter  —  mere  weak  sentimentality;  then  opinion  is 
powerless  and  brute  force  rules  and  will  rule  the  world.  If 
no  difference  is  recognized  between  right  and  wrong,  then 
there  are  no  moral  standards.  There  come  times  in  the  lives 
of  nations  as  of  men  when  to  treat  wrong  as  if  it  were  right 
is  treason  to  the  right. 

The  American  people  were  entitled  not  merely  to  feel  but 
to  speak  concerning  the  wrong  done  to  Belgium.  It  was  not 
like  interference  in  the  internal  affairs  of  Mexico  or  any  other 
nation,  for  this  was  an  international  wrong.    The  law  pro- 


FOREIGN  AFFAmS,  1913-1916  443 

tecting  Belgium  which  was  violated  was  our  law  and  the  law 
of  every  other  civiKzed  country.  For  generations  we  had 
been  urging  on  and  helping  in  its  development  and  estab- 
lishment. We  had  spent  our  eflforts  and  our  money  to  that 
end.  In  legislative  resolution  and  executive  declaration  and 
diplomatic  correspondence  and  special  treaties  and  inter- 
national conferences  and  conventions  we  had  played  our  part 
in  conjunction  with  other  civilized  countries  in  making  that 
law.  We  had  boimd  ourselves  by  it;  we  had  regulated  our 
conduct  by  it;  and  we  were  entitled  to  have  other  nations 
observe  it.  That  law  was  the  protection  of  our  peace  and 
security.  It  was  our  safeguard  against  the  necessity  of 
maintaining  great  armaments  and  wasting  our  substance  in 
continual  readiness  for  war.  Our  interest  in  having  it  main- 
tained as  the  law  of  nations  was  a  substantial,  valuable, 
permanent  interest,  just  as  real  as  yoiu*  interest  and  mine  in 
having  maintained  and  enforced  the  laws  against  assault 
and  robbery  and  arson  which  protect  our  personal  safety  and 
property.  Moreover,  that  law  was  written  into  a  solenm 
and  formal  convention,  signed  and  ratified  by  Germany  and 
Belgium  and  France  and  the  United  States  in  which  those 
other  countries  agreed  with  us  that  the  law  should  be  ob- 
served. When  Belgium  was  invaded  that  agreement  was 
binding  not  only  morally  but  strictly  and  technically,  because 
there  was  then  no  nation  a  party  to  the  war  which  was  not 
also  a  party  to  the  convention.  The  invasion  of  Belgium 
was  a  breach  of  contract  with  us  for  the  maintenance  of  a 
law  of  nations  which  was  the  protection  of  our  peace,  and 
the  interest  which  sustained  the  contract  justified  an  objec- 
tion to  its  breach.  There  was  no  question  here  of  interfering 
in  the  quarrels  of  Europe.  We  had  a  right  to  be  neutral  and 
we  were  neutral  as  to  the  quarrel  between  Germany  and 
France,  but  when  as  an  incident  to  the  prosecution  of  that 
quarrel  Germany  broke  the  law  which  we  were  entitled  to 


444  INTERNATIONAL  SUBJECTS 

have  preserved,  and  which  she  had  agreed  with  us  to  pre- 
serve, we  were  entitled  to  be  heard  in  the  assertion  of  our 
own  national  right.  With  the  right  to  speak  came  responsi- 
bility, and  with  responsibiUty  came  duty  —  duty  of  govern- 
ment towards  all  the  peaceful  men  and  women  in  America 
not  to  acquiesce  in  the  destruction  of  the  law  which  protected 
them,  for  if  the  worid  assents  to  this  great  and  signal  viola- 
tion of  the  law  of  nations,  then  the  law  of  nations  no  longer 
exists  and  we  have  no  protection  save  in  subserviency  or  in 
force.  And  with  the  right  to  speak  there  came  to  this,  the 
greatest  of  neutral  nations,  the  greatest  of  free  democracies 
another  duty  to  the  cause  of  liberty  and  justice  for  which 
Americfa  stands;  duty  to  the  ideals  of  America's  nobler 
nature;  duty  to  the  honor  of  her  past  and  the  hopes  of  her 
future;  for  this  law  was  a  bulwark  of  peace  and  justice  to 
the  worid;  it  was  a  barrier  to  the  spread  of  war;  it  was  a 
safeguard  to  the  independence  and  liberty  of  all  small,  weak 
states.  It  marks  the  progress  of  civilization.  If  the  worid 
consents  to  its  destruction  the  worid  turns  backwards 
towards  savagery,  and  America's  assent  would  be  America's 
abandonment  of  the  mission  of  democracy. 

Yet  the  American  Government  acquiesced  in  the  treat- 
ment of  Belgium  and  the  destruction  of  the  law  of  nations. 
Without  one  word  of  objection  or  dissent  to  the  repudiation 
of  law  or  the  breach  of  oiu*  treaty  or  the  violation  of  justice 
and  humanity  in  the  treatment  of  Belgium,  our  government 
enjoined  upon  the  people  of  the  United  States  an  undis- 
criminating  and  all-embracing  neutrality,  and  the  President 
admonished  the  people  that  they  must  be  neutral  in  all 
respects  in  act  and  word  and  thought  and  sentiment.  We 
were  to  be  not  merely  neutral  as  to  the  quarrels  of  Europe, 
but  neutral  as  to  the  treatment  of  Belgium;  neutral  between 
right  and  wrong;  neutral  between  justice  and  injustice; 
neutral  between  himianity  and  cruelty;    neutral  between 


FOREIGN  AFFAIRS,  191S-1916  445 

liberty  and  oppression.  Our  Government  did  more  than 
acquiesce,  for  in  the  first  Lusitania  note,  with  the  unspeak- 
able horrors  of  the  conquest  of  Belgium  still  fresh  in  our 
minds,  on  the  very  day  after  the  report  of  the  Bryce  Com- 
mission on  Belgian  Atrocities,  it  wrote  these  words  to  the 
Government  of  Germany: 

Recalling  the  humane  and  enlightened  attitude  hitherto  assumed  by 
the  Imperial  German  Government  in  matters  of  international  right,  and 
particularly  with  regard  to  the  freedom  of  the  seas,  having  learned  to 
recognize  the  German  views  and  the  German  influence  in  the  field  of 
international  obligation  as  always  engaged  upon  the  side  of  justice  and 
humanity,  etc. 

And  so  the  Government  of  the  United  States  appeared  as 
approving  the  treatment  of  Belgium.  It  misrepresented  the 
people  of  the  United  States  in  that  acquiescence  and  apparent 
approval.  It  was  not  necessary  that  the  United  States  should 
go  to  war  in  defense  of  the  violated  law.  A  single  official 
expression  by  the  Government  of  the  United  States,  a  single 
sentence  denying  assent  and  recording  disapproval  of  what 
Germany  did  in  Belgium  would  have  given  to  the  p>eople  of 
America  that  leadership  to  which  they  were  entitled  in  their 
earnest  groping  for  the  light.  It  would  have  ranged  behind 
American  leadership  the  conscience  and  morality  of  the 
neutral  world.  It  would  have  brought  to  American  diplo- 
macy the  respect  and  strength  of  loyalty  to  a  great  cause. 
But  it  was  not  to  be.  The  American  Government  failed  to 
rise  to  the  demands  of  the  great  occasion.  Gone  were  the 
old  love  of  justice;  the  old  passion  for  liberty;  the  old  sym- 
pathy with  the  oppressed;  the  old  ideals  of  an  America 
helping  the  world  towards  a  better  future;  and  there  re- 
mained in  the  eyes  of  mankind  only  solicitude  for  trade  and 
profit  and  prosperity  and  wealth. 

The  American  Government  could  not  really  have  approved 
the  treatment  of  Belgium,  but  under  a  mistaken  policy  it 


446  INTERNATIONAL  SUBJECTS 

shrank  from  speaking  the  truth.  That  vital  error  has  carried 
into  every  effort  of  our  diplomacy  the  weakness  of  a  false 
position.  Every  note  of  remonstrance  against  interference 
with  trade,  or  even  against  the  destruction  of  life,  has  been 
projected  against  the  backgroimd  of  an  abandonment  of  the 
principles  for  which  America  once  stood,  and  has  been 
weakened  by  the  popular  feeling  among  the  peoples  of 
Europe,  whose  hearts  are  lifted  up  by  the  impulses  of  pa- 
triotism and  sacrifice,  that  America  has  become  weak  and 
sordid. 

Such  policies  as  I  have  described  are  doubly  dangerous  in 
their  effect  upon  foreign  nations  and  in  their  effect  at  home. 
It  is  a  matter  of  universal  experience  that  a  weak  and  appre- 
hensive treatment  of  foreign  affairs  invites  encroachments 
upon  rights  and  leads  to  situations  in  which  it  is  difllcult 
to  prevent  war,  while  a  firm  and  frank  policy  at  the  outset 
prevents  difficult  situations  from  arising  and  tends  most 
strongly  to  preserve  peace.  On  the  other  hand,  if  a  govern- 
ment is  to  be  strong  in  its  diplomacy,  its  own  people  must 
be  ranged  in  its  support  by  leadership  of  opinion  in  a  na- 
tional cause  worthy  to  awaken  their  patriotism  and  devotion. 

We  have  not  been  following  the  path  of  peace.  We  have 
been  blindly  stumbhng  along  the  road  that  continued  will 
lead  to  inevitable  war.  Our  diplomacy  has  dealt  with  symp- 
toms and  ignored  causes.  The  great  decisive  question  upon 
which  our  peace  depends,  is  the  question  whether  the  rule  of 
action  appHed  to  Belgium  is  to  be  tolerated.  If  it  is  tolerated 
by  the  civilized  world,  this  nation  will  have  to  fight  for  its 
life.  There  will  be  no  escape.  That  is  the  critical  point  of 
defense  for  the  peace  of  America. 

When  our  Government  failed  to  tell  the  truth  about 
Belgium,  it  lost  the  opportunity  for  leadership  of  the  moral 
sense  of  the  American  people,  and  it  lost  the  power  which  a 
knowledge  of  that  leadership  and  a  sympathetic  response 


FOREIGN  AFFAmS,  1913-1916  447 

from  the  moral  sense  of  the  world  would  have  given  to  our 
diplomacy.  When  our  Government  failed  to  make  any  pro- 
vision whatever  for  defending  its  rights  in  case  they  should 
be  trampled  upon,  it  lost  the  power  which  a  behef  in  its 
readiness  and  will  to  maintain  its  rights  would  have  given  to 
its  diplomatic  representations.  When  oiu"  Government  gave 
notice  to  Germany  that  it  would  destroy  American  hves  and 
American  ships  at  its  peril,  our  words,  which  would  have 
been  potent  if  sustained  by  adequate  preparation  to  make 
them  good,  and  by  the  prestige  and  authority  of  the  moral 
leadership  of  a  great  people  in  a  great  cause,  were  treated 
with  a  contempt  which  should  have  been  foreseen;  and 
when  our  Grovemment  failed  to  make  those  words  good,  its 
diplomacy  was  bankrupt. 

Upon  the  record  of  performance  which  I  have  tried  to 
describe,  will  the  American  people  say  that  the  Democratic 
party  is  entitled  to  be  continued  in  power  ? 


INDEX 


INDEX 


Abdul-Aziz,   sultan   of  Turkey   (1861- 
1876),  283,  284. 

Acapulco,  229,  299. 

Adams,  President  John  Quincy,  120,  223; 
•on  South  American  independence,  114. 

Adrian,  see  Hadrian. 

Agadir,  165. 

Aggression,  intentional,  pretext  always 
sought  for,  166. 

Aix-la-Chapelle,  Congress  of  (1818),  106. 

Alabama  Claims,  arbitration  of  the,  at 
Geneva,  66  f.,  213,  291,  301. 

Alaska,  299;  boundary  dispute,  301. 

Alexander  II,  emperor  of  Russia  (1855- 
1881),  93. 

Alexander,  Joshua  W.,  American  con- 
gressman, 358. 

Alexandria,  101. 

Algeciras,  Conference  of  (1906),  46,  165. 

Aliens,  rights  of,  imder  treaties,  7-23. 

Altruism,  defects  and  merits  of,  132  f. 

Ambassador  from  Brazil,  see  Gama. 

American  Institute  of  International  Law, 
the,  405,  411;  its  Declaration  of  the 
Rights  and  Duties  of  Nations,  412- 
426. 

American  Peace  Society,  the,  63. 

American  people,  the,  characterized, 
133  f .,  440  f . 

Americans,  killing  of,  thought  safe,  440. 

American  Society  for  Judicial  Settlement 
of  International  Disputes,  145,  150, 
161  f. 

American  Society  of  International  Law, 
3,  7  f .,  72,  89,  124,  126,  154,  404.  413. 

Amos,  Sheldon,  on  Lieber,  94. 

Anarchy,  tendency  of  democracies  to 
lapse  into,  418;  condition  of,  in  Mexi- 
co, 333  f .,  430. 

Anemia,  the,  destroyed,  439. 

Anglo-Saxon  liberty,  388. 

Ml 


Antioquia,  Colombian  state,  191. 

Arabic,  the,  torpedoed,  438. 

Arbitral  Justice,  Court  of,  proposed,  86, 
364. 

Arbitral  tribunals,  characteristics  of,  148. 

Arbitration,  international,  31  f.,  33-42, 
67,  135,  140  ff.,  144,  147  ff.;  principle 
of,  the  United  States  committed  to, 
232-238,  332,  432;  vital  questions  of 
public  policy  cannot  be  submitted  to, 
165  f. 

Arbitrations,  tendency  of,  83  f .,  140  f. 

Ardila,  Panaman  notable,  196. 

Argentina,  115,  120,  253  ff. 

Argentine  Confederation,  Argentine  Re- 
public, see  Argentina. 

Armaments,  limitation  of,  137  f. 

Arosemana,  Justo,  Panaman  notable, 
196. 

Arosemana,  Pablo,  Panaman  legislator, 
196. 

Arthur,  President,  237. 

Ashburton,  Lord,  4. 

Asser,  T.  M.  C,  of  Holland,  165. 

Association  for  the  Reform  and  Codifi- 
cation of  the  Law  of  Nations,  63  f . 

Atmosphere  of  the  court  room,  import- 
ance of,  37. 

Austria-Hungary.  71,  78,  99,  170,  176, 
283,  308,  319,  365,  379,  439. 

Bacon,  Lord,  saying  of,  157. 

Bahamas,  the,  210. 

Bailey,  Joseph  Weldon,  American  sena- 
tor, 321,  322. 

Balance  of  power,  the,  in  Europe,  111, 
165.  395,  418. 

Baldwin,  Simeon  Eben,  governor  of 
Connecticut,  407  f . 

Balkans,  the,  174. 

Baltic  ports,  the,  of  Russia,  299. 


452 


INDEX 


Baltimore,  299. 

Bancroft,  George,  American  diplomat 
and  historian,  97;  negotiates  treaties 
with  the  German  states,  319  f . 

Bar,  Ludwig  von,  professor  of  criminal 
law  at  GOttingen,  164. 

Bard,  Thomas  Robert,  American  sena- 
tor, 221. 

Bayard,  Chevalier  de,  174. 

Bayard,  Thomas  Francis,  American 
statesman  and  diplomat,  301  f . 

Beaupre,  Arthur  Matthias,  American 
diplomat,  198  f. 

Belgium,  170,  176,  319, 386,  887;  inva- 
sion of,  441-447. 

Belize,  see  British  Honduras. 

Bentham,  Jeremy,  62. 

Bentwich,  Norman,  remarks  of,  in  the 
Fortnightly  Review,  82  f . 

Berlin,  entry  of  Napoleon  into  (1806),  96. 

Berlin  Decree,  the  (1806),  75. 

Bermuda,  210. 

Berne,  meeting  of  economists  and  publi- 
cists at,  169  f. 

Bernstorff,  Albrecht,  Count,  Prussian 
minister,  422. 

BemstorfiF,  Johann  Heinrich,  Count, 
German  diplomat,  422. 

Biddle,  Nicholas,  American  financier,  97. 

Binney,  Horace,  American  lawyer,  91. 

Black,  Jeremiah  Sullivan,  attorney- 
general  of  the  United  States,  317. 

Black  Sea,  the,  neutralization  of,  180. 

Blaine,  James  Gillespie,  American  states- 
man, 222,  237,  262  f .,  278. 

Blockades,  in  the  Declaration  of  Paris, 
78. 

BlUcher,  Prussian  general,  96. 

Bluntschli,  Johann  Kaspar,  publicbt,  62, 
99,  406;  comments  of,  on  Lieber's 
work,  94  f.,  101  f. 

Bogota,  capital  of  Colombia,  187,  192, 
193,  194,  195,  197,  198,  199. 

Bolivar,  Colombian  state,  191. 

Boston,  16,  97,  294,  370. 

Bourbons,  restored  to  the  throne  of 
France,  106. 


Boxer  Rebellion,  the,  in  China  (1900- 
1901),  47,  205. 

Brandegee,  Frank  Bosworth,  American 
senator,  240. 

Brazil,  52  f.,  120. 

Bremen  trade,  the,  383. 

Brest,  75. 

British  Guiana,  210. 

British  Honduras,  210. 

Brussels  Conference,  the  (1874),  93. 

Bryan,  William  Jennings,  American 
politician,  432,  439. 

Bryce  Commission  on  Atrocities  in  Bd- 
gium,  the,  445. 

Buchanan,  James,  110,  317. 

Buchanan,  William  Insco,  American  dip- 
lomat, 176. 

Buffalo,  294. 

Buffer  states,  establishment  of.  111. 

Bunau-Varilla,  Panaman  diplomat,  175, 
243. 

Bureau  of  International  Peace,  the,  63. 

Burritt,  Elihu,  '  the  Learned  Black- 
smith,' 63. 

Burton,  Theodore  Elijah,  American  sena- 
tor, 345. 

Cadwalader,  American  general,  90. 
Calhoun,     John     Caldwell,     American 

statesman,  110,  425. 
California,  9-23,  154,  209. 
Calvo,  Carlos,  publicist,  84. 
Canada,  213  f.,  269,  299,  388. 
Canal  Zone,  the,  207,  225  ff.,  241,  248. 

285,  296. 
Canning,    George,    English   statesman. 

106,  114. 
Cape  Horn,  perils  of  navigation  around. 

179. 
Capital,  accimiulation  of,  45. 
Caribbean  Sea,  the,  121,  179,  226,  410. 
Carnegie  Endowment  for  International 

Peace,  the,  124  f.,  126,  154. 
Caroline  Islands,  the,  299. 
Carranza,    Venustiano,    Mexican  chief. 

429-432. 
Carson,  Sir  Edward,  391. 


INDEX 


453 


Cartago,  Costa  Rica,  pennanent  court 
for  the  Central  American  states  estab- 
lished at  (1908),  154. 

Cases:  the  Adda,  41;  the  Aghios  Geor- 
ghios,  381;  Baldwin  r.  Franks,  17; 
Chirac  r.  Chirac,  19;  the  Circassian, 
41;  Costello  (1866),  318;  the  Dashing 
Wave,M;  DelagoaBay,  385  f.;  Ernst, 
317;  Fairfax  v.  Hunter,  19;  Geofroy 
V.  Riggs,  14  f.;  the  Georgia,  40;  the 
Hiawatha,  41 ;  the  Isabella  Thompson, 
40;  Olsen  v.  Smith,  298;  the  Parlement 
Beige,  386  f.;  Tiburicio  Parrot,  17;  the 
Pearl,  41;  the  Peterhof,  40;  the  Science, 
41;  Shank  r.  Dupont,  316;  the  Sir 
William  Peel,  41;  the  Springbock,  41; 
the  Vasilios,  381;  the  Volant,  41; 
Ware  v.  Hylton,  18;  Warren  (1866) 
318;  Williams  (1797),  315  f. 

Cass,  Lewis,  on  the  scope  of  the  Monroe 
Doctrine,  117;  on  the  isthmian  route, 
188  f.,  224;  on  canal  privileges,  222, 
258,  262. 

Cauca,  Colombian  state,  191. 

Caucuses,  place  of,  348. 

Cavour,  Italian  statesman,  174. 

Central  America,  47,  189,  210,  211,  224, 
236,  258,  261,  410. 

Central  American  Peace  Congress,  the 
(1907),  153  f. 

Central  Office  of  International  Institu- 
tions, the,  at  Brussels,  64. 

Chaffee,  Adna  Romanza,  American 
general,  at  Peking,  205. 

Chamber  of  Commerce  of  New  York, 
356. 

Channel,  English,  386. 

Charleston,  16. 

Chesapeake  Bay,  369. 

Chicago,  359. 

Chile,  120. 

China,  46,  47,  48,  176,  205,  272  ff. 

Chinamen,  mobbed,  52. 

Chinese  children,  separate  schools  for, 
in  California,  10. 

Chinese  policy,  the,  of  America,  321  f. 

Chiriqui,  province,  191. 


Choate,  Joseph  Hodges,  American  diplo- 
mat, 145,  247  f.,  256,  259,  263,  272, 
276,  279,  280,  281,  286  f.,  288,  294  f., 
307  f. 

Christian  Church,  the,  395. 

Christiania,  Norway,  154. 

Civilization,  advances  of,  139,  418. 

Civil  War,  the,  66,  75  f .,  89-95,  370. 

Clay,  Henry,  American  statesman,  120, 

223,  260  f . 

Clayton,  John  Middleton,  American 
politician,  110,  210,  211. 

Cleveland,  President  Grover,  on  the 
Monroe  Doctrine,  108;  on  differential 
tolls  at  Canadian  canals,  213  f . ;  on 
the  neutrality  of  interoceanic  routes, 

224,  264;  on  arbitration,  238. 

'  Coasting  trade,'  '  coastwise  trade,*  use 
of  the  terms,  227  f .,  298  f. 

Codification  of  international  law,  405- 
411;  private,  57-72,  408  f.;  private 
codification  goes  for  nothing  imless 
accepted  by  governments,  408  f . 

Coercion,  to  be  avoided  by  peace  con- 
ferences, 143. 

Colberg,  city  in  Prussia,  96. 

Collegium,  8. 

Colombia,  228  f..  230,  268  f .,  295  f.,  299, 
309;  relations  of,  with  Panama  and 
the  United  SUtes,  175-206. 

Colon,  city,  194,  202,  203,  204,  205. 

Colonies,  growth  of,  29. 

Colonization,  right  of,  in  America,  no 
longer  asserted,  107. 

Colt,  Le  Baron  Bradford,  American  sena- 
tor, 295,  296. 

Columbia  College,  Lieber  at,  90,  97. 

Colunje,  Gil,  Panaman  legislator,  196. 

Confederate  archives,  classified  and  ar- 
ranged by  Lieber,  98. 

Confederate  cruisers,  fitted  out  in  the 
ports  of  Great  Britain,  76. 

Confederation  of  the  Rhine,  the,  96. 

Conference  of  Teachers  of  International 
Law  and  Related  Subjects  (1914),  125. 

Conflict  of  treaties  and  state  laws,  17-20. 

Conformity,  impulse  of,  28. 


454 


INDEX 


Constantinople,  Convention  of  (1888), 
219,  220,  221,  229  ff.,  245,  249,  264  f ., 
282-285,  290,  295,  296. 

Constantinople,  Treaty  of,  gee  Constan- 
tinople, Convention  of. 

Constitution,  American,  39  f.,  51. 

Constitutional  government,  modification 
of,  by  practice,  349. 

Constitutional  provisions,  reason  for,  61. 

Continental  Congress,  treaty-making 
power  exercised  by,  15  f . 

Contraband,  search  ^or,  389  f. 

Contract  debts,  ordinary,  of  govern- 
ments, not  to  be  collected  by  force, 
139  f. 

Control  of  American  nations  by  the 
United  States,  not  involved  in  the 
Monroe  Doctrine,  119  f. 

Conventions:  for  the  International  Pro- 
tection of  Industrial  Property  (1883) 
65;  for  the  Protection  of  Submarine 
Cables  (1884),  65;  for  the  Exchange  of 
Official  Documents  (1886),  65;  for  the 
Publication  of  Customs  Tariffs  (1890), 
65;  for  the  Prohibition  of  the  Use  of 
Explosive  Bullets  (1868),  65;  Geneva 
Convention  relating  to  the  Treatment 
of  the  Woimded  of  Armies  in  the  Field, 
(1864),  65;  for  the  Pacific  Settlement 
of  International  Disputes  (1899),  399  f. 

Costa  Rica,  176,  190,  211,  220,  264,  299. 

Crete,  180. 

Crimean  War,  the,  318. 

Crowe,  English  delegate,  372. 

Cruelty,  now  shocks  the  sensibilities,  172. 

Cuba,  110,  153,  176,  206. 

Cullom,  Shelby  Moore,  American  sena- 
tor, 281,  288,  295. 

Cummins,  Albert  Baird,  American  sena- 
tor, 215  f.,  305,  345. 

Cundinamarca,  Colombian  state,  191. 

Cushing,  the,  attacked  by  an  aeroplane, 
437. 

Cynics,  attitude  of,  87. 

Daniels,  Josephus,  secretary  of  the  navy, 
436. 


Danubian  principalities,  180. 

Dardanelles,  the,  180. 

Darien,  Isthmus  of,  258.    See  Panama. 

Davis,  Bancroft,  16. 

Davis,     Cushman    Kellogg,     American 

senator,  215,  220,  229,  264,  288. 
Declaration  of  Independence,  the,  28,  32, 

209,  416. 
Declaration  of  the  Rights  and  Duties  of 

Nations,  the  (Jan,  6,  1916),  413-426. 
De  Jure  Belli  et  Pads,  by  Grotius,  166, 

402. 
De  Lesseps  Company,  see  Panama  Canal 

Company. 
Democracy,  dangers  of,  as  respects  in- 
ternational relations,  7  f .,  22  f.,  127  f., 

310  f.;    tendency  of  democracies   to 

lapse  into   anarchy,   418;    what  the 

American  democracy  stands  for,  440  f . 
Democracy  in  America,  by  de  Tocque- 

ville,  310. 
Democratic  party,  the,  435,  436,  447. 
Denmark,  170,  176,  319. 
Denver,  52. 
Devonshire,  Duke  of,  on  the  Monroe 

Doctrine,  109. 
Diplomacy,  former  character  of,   135; 

present  relation  of,  to  moral  standards, 

135;  American,  has  lost  authority  and 

influence,  440. 
Discussion  in  legislative  bodies,  uses  of, 

339  f.,  347-350. 
Disraeli  (Earl  of  Beaconsfield),  283. 
Distribution  of  powers,  14. 
Dolphin,  the,  American  naval  vessel,  431. 
Don  Pacifico  case,  the,  49. 
Drago,  Luis  Maria,  Argentine  publicist, 

34,  115. 
Drago  Doctrine,  the,  139  f . 
Drmi  oblige,  102. 
Dufour,  Guillaume  Henri,  Swiss  general, 

101. 
Dumba,  Konstantin  Theodor,  Austrian 

diplomat,  439. 
Duplessix,  French  publicist,  63. 
Duties,  to  be  kept  in  mind  as  well  as 

rights,  102,  127  f. 


INDEX 


455 


Eastern  Question,  the,  165. 

Ecuador,  190. 

Edmonds,  George  Washington,  Ameri- 
can congressman,  857  f . 

Edward  VII,  king  of  England  (1901- 
1910),  274. 

Egypt,  180,  229,  230  f.;  British  occupa- 
tion of,  121. 

Elba,  Napoleon's  escape  from,  96. 

Elbe,  the,  75. 

Electoral  college,  the,  178,  349. 

El  Relator,  newspaper  of  Bogota,  quoted, 
195  f. 

Ems,  the,  75. 

Encyclopaedia  Americana,  the,  97. 

Enforcement  of  laws  conditional  upon 
public  opinion,  27  f . 

England,  see  Great  Britain. 

Erie  Canal,  the,  200. 

Erwin,  Mississippi,  52. 

Europe,  quarrels  of,  to  be  kept  from 
America,  121  ff.;  armaments  of,  138. 

European  War,  the  (1914-),  154;  rela- 
tion of,  to  the  Ship  Purchase  Bill,  837- 
390;  relation  of,  to  international  law, 
391-420;  and  the  administration  of 
President  Wilson,  434-447. 

Everett,  Ekiward,  American  statesman, 
97,  317. 

Expatriation,  right  of,  166  f.,  313-326. 

Exploaiviatas,  303. 

Ezuero,  province,  191. 

Falaba,  the,  torpedoed,  437. 
Fatiltfinders,  perennial,  an  incident   of 

free  institutions,  177. 
Federalist,  The,  39. 

Federation  of  the  world,  dreams  of,  143  f . 
Feeling,  matters  of,  as  causes  of  war,  147, 

324  f. 
Ferdinand  VII,  king  of  Spain   (1814- 

1833),  106. 
Femeck,   Alexander   von,   professor   at 

Vienna,  879  ff. 
Feudal  system,  the,  in  Japan,  22. 
Field,  David  Dudley,  American  jurist, 

62,  68,  100,  405  f. 


Fiore,  Pasquale,  Italian  publicist,  62  f . 
Fish,   Hamilton,   American   statesman, 

52  f. 
Fisheries  arbitration,  the,  296  f . 
Fletcher,    Duncan    Upshaw,    American 

senator.  389,  342,  843,  345. 
Force,  world  said  to  be  ruled  by,  135. 
France,  71,  78,  106,  107,  109,  110,  114, 

170,  176,  258,  308,  816,  820,  882,  858, 

365,  367,  868,  369,  870,  871,  878,  879, 

380,  888,  886,  387,  443. 
Franco-German  War  of  1870,  the,  93,  94. 
French  Company,  the,  see  Panama  Canal 

Company. 
French  Revolution,  inspires  a  conception 

of  popular  liberty,  95  f . ;    remark  of 

Livber  concerning,  102. 
Friedland,  battle  of  (1807),  96. 

Galileo,  apocrjrphal  exclamation  of,  174. 

Gallinger,  Jacob  H.,  American  senator, 
305  f.,  345. 

Gama,  Domicio  da,  Brazilian  diplomat, 
409  f. 

Gardner,  Augustus  Peabody,  American 
congressman,  486. 

General  Order  No.  100  of  1868,  66,  67, 
89-95. 

Geneva  Conventions,  the,  178,  407. 

Germany,  78,  109,  111,  117,  126,  165, 
170,  176,  228,  272,  278,  299,  308,  382, 
365,  867,  368,  869,  870,  871,  872,  873, 
878,  880,  881  f.,  888,  886,  887;  idle* 
German  ships  in  American  harbors, 
357  f.,  870;  submarine  warfare  of, 
486-440,  447;  attack  upon  Belgium. 
440-446. 

Ghent,  68,  101. 

Golden  Rule,  the,  as  a  guide  of  American 
diplomacy,  109. 

Grant,  President,  286. 

Great  Britain,  §6  f .,  71,  75  f .,  76,  80,  82  f.. 
Ill,  170,  176,  816,  318,  819,  320,  382, 
858,  365,  867,  369,  371,  872,  378,  878, 
379,  380,  888,  385,  886,  887.  388,  422, 
424;  rdations  of,  to  the  Monroe  Doc- 
trine, 106,  107,  109,  112,  117,  181  f.; 


456 


INDEX 


to  Germany,  111;  attitude  of,  regard- 
ing Agadir,  165;  and  the  question  of 
Panama  tolls,  207-312;  and  the  ques- 
tion of  contraband,  389  f . 

Great  Lakes,  the,  213,  267. 

Greece,  96,  97, 180;  cases  of  the  VasUios 
and  the  Aghios  Georghios,  381. 

Greek  War  of  Independence,  the,  96  f . 

Grey,  Sir  Edward,  British  minister,  77, 
207,  230  f .,  249  f .,  300. 

Greytown,  see  San  Juan  de  Nicaragua. 

Grotius,  Hugo,  Dutch  jurist,  100,  101, 
156,  402. 

Guatemala,  176. 

Guerillas,  Lieber  on,  90. 

Gvlflighi,  the,  torpedoed,  437  f . 

Hadrian,  Roman  emperor  (117-138), 
101. 

Hague,  The,  conferences  at,  30,  93  f., 
102,  103,  107,  147,  160,  162  f.,  407; 
First,  in  1899,  65,  67  f .,  73,  126,  129, 
135,  144,  159,  234,  399,  408;  Second, 
in  1907,  68  f .,  70,  78,  84,  107,  129-144, 
145,  161,  234,  238.  292,  364,  384,  397; 
Third,  proposed,  69,  163. 

Elague  Convention,  the,  for  the  Pacific 
Settlement  of  International  Disputes, 
118,  119,  159,  315.  399  f. 

Halifax,  Nova  Scotia,  229,  299. 

Halleck,  American  general,  90,  91. 

Hamburg-American  Line,  the,  383. 
^Hamburg  trade,  the,  383. 

Hamilton,  Alexander.  33  f .,  39. 

Handbuch  dea  ViUkerrechts,  379. 

Hanna,  Marcus  Alonzo,  American  sena- 
tor, 216. 

Hanover,  317. 

Harrison,  President  Benjamin.  53,  237. 

Harte,  Bret,  51. 

Hartsuff,  American  general,  90. 

Hawaii,  299. 

Hay,  John,  American  statesman,  153, 175, 
198,  201,  234  f.,  247  f.,  256,  257,  259, 
263,  264,  271,  272  flf.,  275,  276.  279. 
280, 281,  286  f ..  288,  294, 295, 307, 308, 
309,  311  f. 


Heis,  American  diplomat,  211. 

Henry  IV,  king  of  France  (1589-1610), 

136. 
Hilliard,  Francis,  American  jurist,  97. 
Hipsang,  sinking  of  the,  76. 
History,  rewriting  of,  173. 
Hitchcock,  American  general,  90,  91. 
Hohenzollem  candidature  for  the  Span- 
ish throne,  the  (1870),  111. 
Holland,  170,  435.    See  Netherlands. 
Holy  Alliance,  the,  106  f . 
Hondiu-as,  299. 
Hong-Kong,  299. 
House  of  Conmions,  resolution  of,  in 

favor  of  arbitration  (Jidy  16,  1893), 

235,  238. 
Huerta,  Victoriano,  Mexican  ruler,  327- 

335,  429-433. 
Hughes,  William,  American  senator,  346. 
Humanitarianism,  defects  and  merits  of, 

132  f. 
Humanity,  sentiment  of,  as  a  leading 

power,  133  f . 
Hungary,  immigration  from.  320. 
Hiutado,  Panaman  diplomat,  196. 

Idaho,  209. 

Idealism,  strain  of,  in  the  American  na- 
ture, 134,  440  f . 

Impartiality,  not  to  be  expected  from 
executive  and  administrative  officers, 
36  f..  132. 

Independent  sovereignty,  the  fundamen- 
tal principle  of  international  law,  113; 
practical  limitations  of,  1 15  ff.,  180  f . 

Indian  children,  separate  schools  for,  10. 

Innes,  Mitchell,  300. 

InstUut  de  Droii  International,  see  Insti- 
tute of  International  Law. 

Institute  of  International  Law,  the,  63, 
68,  93,  101,  102,  408,  414. 

Insults,  as  causes  of  personal  and  na- 
tional quarrels,  324  f . 

Intelligence,  general  diffusion  of,  44. 

International  Bureau  of  Weights  and 
Measures,  establishment  of  (1875),  65. 

International  Conmiittee  of  Geneva,  101. 


INDEX 


457 


International  conduct,  standard  of,  S5  f . 

International  court,  proposed,  396-402. 

International  law,  private  codification  of, 
57-72;  independent  sovereignty  the 
fundamental  principle  of,  113;  limita- 
.  tions  on  this  principle,  115  ff.,  180; 
study  of,  necessary  to  avert  dangers  of 
democratic  control,  5  f .,  163  ff. ;  inter- 
national school  of,  to  be  established  at 
The  Hague,  164  f.;  outlook  for  (1915), 
891-403;  Declaration  of  the  Rights 
and  Duties  of  Nations  (1916),  413- 
426.    See  Law  of  nations. 

International  Law  Association,  63  f . 

International  Naval  Conference,  see  Lon- 
don, Conference  of. 

International  police  force,  idea  of  a,  157. 

International  Prize  Court,  Convention 
for,  70,  72-78,  82-87. 

International  public  opinion,  28-32.  See 
Opinion. 

International  societies,  multiplication  of, 
64  f. 

Ireland,  317. 

Ismail  Pasha,  khedive  of  Egypt  (1863- 
1879),  283,  284. 

Isolation,  breaking  down  of,  29, 166f .,  171. 

Italians,  lynched,  52,  53. 

Italy.  71,  78,  117,  170,  176,  308,  320, 
332,  365,  380.  381. 

Jamaica,  210. 

Japan,  8-23,  46,  71,  76,  78, 154,  170,  176, 
365. 

Jefferson,  Thomas,  on  the  Monroe  Doc- 
trine, 108. 

Jena,  battle  of  (1806),  96. 

Jena,  university  of,  96. 

Jews,  313,  321. 

Johnson,  Cone,  solicitor  of  the  American 
State  Department,  361  f.,  363,  366, 
367,  368,  369,  371,  373. 

Jomini,  Baron,  Russian  delegate,  93. 

Judicial  Arbitral  Court,  creation  of, 
reconunended,  84. 

Judicial  v.  diplomatic  action  in  arbitra- 
tion, 142. 


Justice,  revered  by  the  foimders  of  the 
American  Union,  40;  conformity  to, 
the  unquestionable  standard  of  inter- 
national conduct,  35  f . 

Justinian,  91. 

Kent,  James,  American  jurist,  316. 

Kenyon,  William  Squire,  American  sena- 
tor, 304  f . 

Khedive,  the,  see  Ismail  Pasha. 

King,  American  diplomat,  192,  194. 

Knight  Commander,  sinking  of  the,  76. 

Korea,  American  force  in  (1904),  205. 

Korean  children,  separate  schools  for,  in 
California,  10. 

Kriege,  Johannes,  German  delegate, 
372  f .,  375. 

Kurihama,  town  in  Japan,  22. 

Labor,  fluidity  of,  44. 

Labrador,  209. 

La  Fontaine,  Henri,  director  of  the  Inter- 
national Bibliographical  Institute  at 
Brussels,  167. 

Lake  Mohonk  Conference,  the,  8. 

Lansdowne,  Lord,  British  minister, 
247  f .,  256,  280,  295,  307  f . 

Lansing,  Robert,  884  f.,  434. 

Laodicea,  101. 

Law  of  nations,  58;  new  era  in,  60; 
formerly  existed  for  Europe  alone, 
107;  described  by  Lord  Mansfidd, 
161  f.,  893;  assertion  of  Sir  Edward 
Carson  concerning,  891;  violated  by 
the  attack  on  Bdgium,  442-447.  See 
International  law. 

Lawrence,  William  Beach,  American 
jurist,  63. 

Laybach,  Congress  of  (1821),  106. 

Leeward  Islands,  the,  210. 

Lesseps,  Ferdinand  de,  185. 

Liberalism,  reaction  against,  in  Europe. 
106. 

Lieber,  Francis,  66,  67,  89-103. 

Lincoln,  Abraham,  66,  89,  93,  94.  174. 
259,  422. 


458 


INDEX 


Lmd,  John,  agent  of  President  Wilson, 

429. 
Lodge,  Henry  Cabot,  American  senator, 

804,  318,  327,  338,  341,  345,  364,  857, 

886,  436. 
LOvIand,  president  of  the  Nobel  Prize 

Committee,  153. 
VOffice  Central,  the,  at  Brussels,  167. 
London,  299. 
London,  Conference  of  (1908),  70  f .,  78- 

87,  363,  364,  365,  367  ff.,  382,  398. 
London,  Declaration  of  (1909),  79-87, 

365-384,  398. 
Louis  XIV,  king  of  France  (1643-1715), 

349. 
Lowell,  James  Russell,  American  author 

and  diplomat,  222. 
LusUania,  the,  torpedoed,  437  f .,  439, 445. 

McAdoo,  William  Gibbs,  American  cabi- 
net officer,  351,  352,  353,  857  f.,  359, 
360,  384,  385. 

McCumber,  Porter  James,  American 
senator,  282. 

McKinley,  President  William,  153,  175, 
238,  309. 

McLean,  George  Payne,  American  sena- 
tor, 257. 

McLean,  Thomas  Chalmers,  American 
naval  officer,  204. 

Magdalena,  Colombian  state,  191. 

Mallarino,  New  Granadan  diplomat, 
181  f .,  186. 

Mansfield,  Lord,  58,  161  f.,  393. 

Marcy,  William  Learned,  American 
statesman,  317. 

Marne,  battle  of  the  (1914),  435. 

Marroquin,  Jos6  Manuel,  Colombian 
ruler  and  savant,  197,  198. 

Marshall,  John,  American  jurist,  19. 

Martens,  Frederick  de,  Russian  publicist, 
320;  on  Lieber,  94. 

Martindale,  American  general,  90. 

Maryland,  15,  19. 

Mason,  James  Murray,  Confederate 
commissioner,  80,  888,  422,  423. 

Masstichusetts,  16,  40. 


Maurtua,  Peruvian  savant,  409. 

Media  sententia,  81. 

Mediation,  right  and  duty  of,  118  f.,  401. 

Mediterranean,  the,  extension  of  Russian 
l>ower  towards.  111;  submarine  at- 
tacks in,  489. 

Mexican  Claims  Commission,  the,  98. 

Mexican  Resolution,  the  (1914),  827- 
835. 

Mexicans,  lynched,  52. 

Mexican  War,  the,  209. 

Mexico,  109, 110, 114, 117, 158, 174, 199, 
209,  228  f .,  299,  442;  American  rela- 
tions with,  1913-1916,  327-335,  428- 
434. 

Michigan,  Lake,  268. 

Middle  Ages,  the,  418. 

Milan  Decree,  the  (1807),  75. 

Miles,  James  B.,  secretary  of  the  Ameri- 
can Peace  Society,  63. 

Minority,  courage  and  persistency  of  a, 
the  bulwark  of  liberties,  350. 

Mobility  of  mankind,  the  new,  29,  44, 
166  f. 

Mobilization  as  a  justification  for  im- 
mediate war.  111. 

Mob  violence,  outrages  on  foreigners  by, 
50. 

Moe,  secretary  of  the  Nobel  Prize  Com- 
mittee, 153. 

Mongolian  subjects  of  Russia,  323. 

Monroe  Doctrine,  the,  165,  180  f .,  182, 
189,  425  f.;  defined,  105-123. 

Monroe,  President  James,  109,  112,  118, 
120,  121,  122,  425;  his  message  of 
Dec.  2,  1823,  105  f. 

Moral  isolation,  dread  of,  by  govern- 
ments, 30  f . 

Morality,  obligations  of,  nations  must 
submit  to,  424. 

Morocco,  46,  111,  165. 

Mosquito  Coast,  British  protectorate 
over  the,  210,  211,  212,  216. 

'  Most  favored  nation  '  provision,  the, 
16,  252  f.,  254,  255,  259  f. 

Mom-avieff,  Count,  Russian  minister,  67. 

Municipal  law,  codification  of,  59. 


INDEX 


459 


Namur,  battle  of  (1816),  96,  108. 

Napoleon,  76,  96,  418. 

Napoleonic  wars,  the,  436. 

NashviUe,  the,  at  Colon,  202,  203. 

Nations,  law  of,  see  Law  of  nations. 

Naval  Conference  of  London,  see  Lon- 
don, Conference  of. 

Naval  War  College,  the,  378. 

Netherlands,  the,  71,  78,  176.  365,  380. 
See  Holland. 

Neutral  flag,  in  the  Declaration  of  Paris, 
78. 

Neutralization,  of  the  Suez  and  Panama 
canals,  219  f.,  244  f.;  of  the  Panama 
canal,  274-279. 

Neutral  merchandise,  in  the  Declaration 
of  Paris,  78. 

Neutral  territory,  inviolability  of,  392. 

New  Brunswick,  209. 

Newfoundland,  209,  297,  301. 

New  Granada,  181-184,  189,  190  f.,  216, 
217,  243,  266.    See  Colombia. 

New  Orleans,  52,  53. 

New  York,  city  and  port,  16,  97,  101, 
294,  299,  356,  370. 

New  York,  state,  16,  40,  200;  Republi- 
can state  convention  of  1916,  address 
of  Mr.  Root  at,  427-447. 

New  Zealander,  the  typical,  178. 

Nicaragua,  176,  211,  220  f.,  224,  264, 
268,  295,  299. 

Nicaragua  Canal  route,  the,  210,  268, 
295. 

Nicholas  II,  czar  of  Russia  (1894-),  67, 
136,  408. 

Niebuhr,  Barthold  Georg,  German  diplo- 
mat and  historian,  97. 

Nippold,  Otfried,  German  scholar,  164. 

Nobel,  Alfred,  Swedish  scientist,  153, 
154,  172. 

Nobel  Institute,  the,  at  Christiania,  153, 
154. 

Nobel  Prizes,  the,  153. 

North  German  Confederation,  the,  319. 

North  German  Lloyd  Line,  the,  383. 

North  Germany,  100. 

Norway,  176,  319. 


Notes,  of  the  American  government  to 
Germany,  436-440,  445-447. 

Nova  Scotia,  209. 

Nunez,  Rafael,  Colombian  statesman, 
192  ff. 

Nys,  Ernest,  on  Lieber,  95. 

O'Gorman,  James  Aloysius,  American 
senator,  256,  361. 

Oliver,  George  Tener,  American  senator, 
347. 

Olney,  Richard,  American  secretary  of 
state,  217,  271,  301  f. 

'  Open  door,'  the,  in  China,  272  f. 

Opinion,  power  of,  135, 167  ff..  396,  402  f. 

Orders  in  Council,  the,  75. 

Oregon,  209. 

Oregon  boundary,  the,  209. 

Orient,  passage  to  the,  sought  by  early 
navigators,  179. 

Oriental  Public  School,  the,  in  San  Fran- 
cisco, 10. 

Ostend,  386. 

Ottawa,  303. 

Pacific  railroad  companies,  bonds  of,  249. 

Palmerston,  Lord,  49,  210,  261. 

Panama,  city,  194,  202,  203,  204. 

Panama,  republic,  280;  revolt  of,  from 
Colombia,  175-206;  treaty  with  the 
United  States  (1903),  224,  225  ff. 

Panama,  Bay  of,  121,  179. 

Panama  Canal,  the,  121,  154;  and  the 
Panama  revolt,  175-206;  the  ques- 
tion of  tolls,  207-312. 

Panama  Canal  Act,  the  (Aug.  24,  1912), 
207-312. 

Panama  Canal  Company,  the,  185,  187, 
188,  189,  258,  263. 

Panama  Congress,  the  (1826),  223. 

Panama  Railroad,  the,  176.  185.  202  ff., 
247,  262. 

Panama  Railroad  Company,  the,  247, 
249,  262. 

Pan-American  Bureau,  the,  153. 

Pan-American  Conference,  tee  Pan- 
American  Congress. 


460 


INDEX 


Pan-AmericaH  Congress,  First,  at  Wash- 
ington, 234,  236,  237. 

Pan-American  Congress,  Second,  at 
Mexico,  234. 

Pan-American  Congress,  Third,  at  Rio  de 
Janeiro,  114  f.,  153,  234,  410. 

Pan-Americanism,  153. 

Pan-American  Scientific  Congress,  Sec- 
ond, 124,  405,  409  ff.,  413. 

Paris,  Declaration  of  (1856),  66,  78,  162, 
406. 

Paris,  Parliament  of,  349. 

Paris,  Peace  of  (1856),  66,  99. 

Parliament  of  man,  dreams  of,  143,  157. 

Patriotic  societies,  in  Germany,  96. 

Pamicefote,  Julian,  British  diplomat, 
140,  257,  271  f.,  276,  280,  288. 

Pax  Romana,  395. 

Peaceful  interpenetration,  45. 

Peace-loving  and  peace-keeping  charac- 
ter, steady  development  of,  144. 

Peace  propaganda,  methods  of,  155. 

Peace,  universal,  the  object  of  the  Hague 
conferences,  144. 

Peking,  47,  205. 

Pennsylvania,  16,  40. 

Permanent  Court,  the,  at  The  Hague, 
159  fl. 

Permanent  judges,  court  of,  needed  for 
arbitration,  142,  145,  149-152. 

Perry,  Matthew  Calbraith,  American 
naval  officer,  22. 

Persia,  the,  destroyed,  439. 

Personal  rights,  how  limited,  115. 

Peru,  176. 

Philadelphia,  16,  294,  299,  370. 

Philip  II,  king  of  Spain  (1556-1698), 
179. 

Philippines,  the,  163,  206. 

Phillips,  WUliam,  American  diplomat, 
300. 

Pike  County  Ballads,  by  John  Hay,  259. 

PUotage  regulations,  298. 

Pitt,  William,  the  younger,  75. 

Polemon  of  Laodicea,  traveling  professor 
in  the  second  century,  101. 

Poles,  the,  196. 


Policy,  questions  of,  as  causes  of  war, 

146,  165-168,  394,  398. 
Polk,  President  James  i[nox,  182;  states  a 

corollary  to  the  Monroe  Doctrine,  112; 

on  the  New  Granadan  treaty  of  1846, 

183,  266. 
Portland,  Maine,  229,  299. 
Portland,  Oregon,  229. 
Portugal,  176;    the  Delagoa  Bay  case, 

385  f. 
Practical  administrator,   value  of  the, 

132  f. 
Privateering,  abolished  by  Declaration  of 

Paris,  78. 
Prize  Court  Bill,  rejected,  83. 
Professors,   under  the   Roman   empire, 

101. 
Protection,  national,  problem  of,  122. 
Protection  to  citizens  residing  abroad, 

43-56. 
Prussia,  16,  96,  97,  100. 
Prussian  Decree,  the  (1806),  75. 
Public  opinion,  education  of,  8,  164, 

Quebec,  province  of,  209. 

Race  prejudice,  170,  321-323. 

Rayner,  Isidor,  American  senator,  314, 
318,  321. 

Rebus  sic  stantibus,  391. 

Red  Sea,  the,  231. 

Renault,  Louis,  professor  of  international 
law  at  Paris,  165;  report  of,  80  f., 
375  S.,  380. 

Republican  party,  the,  436. 

Reyes,  Rafael,  Colombian  general,  198  f. 

Right  and  duty,  connection  of,  102, 127  f . 

Rio  Grande,  the,  209. 

Rives,  William  Cabell,  American  diplo- 
mat. 210,  215,  261. 

Robber  baron,  days  of,  have  passed,  166. 

Rock  Springs,  Wyoming,  52. 

Rolin-Jaequemyns,  circular  letter  of ,  101. 

Roman  Empire,  the,  418. 

Roman  proconsul,  days  of,  have  passed, 
166. 

Rome,  101. 


INDEX 


461 


Roosevelt,  Theodore,  85,  153,  201,  224, 
262,  263,  265,  276,  289,  309,  436;  on 
the  Monroe  Doctrine,  114  f.;  on  arbi- 
tration, 238,  303,  305;  on  the  Hay- 
Bunau-Varilla  Treaty,  257  f .,  259. 

Rouse,  Colorado,  52. 

Rush,  Richard,  American  diplomat,  106, 
120. 

Russia,  71,  76,  78,  99,  111,  176,  272,  299, 
308,  365,  367,  368,  369,  370,  371,  380, 
383,  387;  claims  of,  in  America,  106, 
107;  treaty  of  1832  with,  313-326. 

Russia,  czar  of,  see  Nicholas  II. 

Russia,  emperor  of,  see  Alexander  II, 
Nicholas  II. 

St.  Clair  Flats  Canal,  the,  213. 

Baint  Kilda,  sinking  of  the,  76. 

St.  Lawrence,  river,  267,  268. 

St.  Lawrence  Canal,  the,  213. 

St.  Lawrence,  Gulf  of,  209. 

St.  Louis,  360. 

Salisbury,  Lord,  257,  259,  264;  on  arbi- 
tration, 140  f . 

Salute,  demanded  from  Mexico,  on  ac- 
count of  Tampico  affair,  329-335, 431  f . 

Sanclemente,  M.  A.,  Colombian  presi- 
dent, 197,  198. 

Sanction  of  international  law,  the,  25-32. 

San  Francisco,  154,  299;  and  the  Japa- 
nese question,  9-23. 

San  Jacinto,  the,  422,  423. 

San  Juan,  island  of,  301. 

San  Juan,  river  in  Central  America,  210. 

San  Juan  de  Nicaragua,  or  Greytown, 
210. 

Santander,  Colombian  state,  191. 

Sault  Sainte  Marie,  canal  at,  246.  294. 

Saunders,  Edward  Watts,  American  con- 
gressman, 357  f . 

Savagery,  139,  444. 

Sawyer,  Justice,  17. 

Schamhorst,  Prussian  statesman,  96. 

Schill,  Prussian  officer,  96. 

Schools  of  California,  Japanese  in,  9-23. 

Scott,  James  Brown,  125,  126,  129,  145, 
413. 


Scott,  Winfield,  American  general,  91. 

Seattle,  299. 

Self -protection,  national  right  of.  111. 

Sentiment,  in  international  relations, 
112,  430. 

Separatist  policy  of  Washington,  import^ 
ance  of,  122. 

Servia,  387. 

Seward,  William  Henry,  American 
statesman,  110,  114,  117,  268. 

Ship  Purchase  Bill,  the,  387-390. 

Ship  registry  bill,  the.  362. 

Ship  subsidies,  249  f.,  351,  355. 

Shively,  Benjamin  Franklin,  American 
senator,  335. 

Siberian  ports,  the,  of  Russia,  299. 

Sidney,  Sir  Philip,  174. 

Simmons,  Fumifold  McLendel,  Ameri- 
can senator,  257,  353,  355,  362. 

Sims,  Thetus  Wilrette,  American  con- 
gressman, 208. 

Slidell,  John,  Confederate  commissioner, 
80,  388,  422,  423. 

Smyrna,  101. 

Smyth,  American  citizen,  injured  by  a 
mob  in  Brazil,  52  f. 

Soil,  severance  from  the,  29,  44,  166  f. 

Solicitor  of  the  State  Department,  the, 
see  Johnson,  Cone. 

Sosa,  Panaman  savant,  196. 

South  America,  struggle  for  independ- 
ence in,  107, 112;  misunderstanding  of 
the  attitude  and  purposes  of  the 
United  States  in,  114;  importance  of 
the  Monroe  Doctrine  to,  122  f.;  de- 
velopment of  arbitration  in,  142,  236; 
visited  by  Secretary  Root,  153,  410; 
trade  with,  351  f.,  385. 

South  Carolina,  16. 

South  Carolina  College,  Lieber  at,  97. 

Sovereign  rights,  how  limited,  115  ff., 
180. 

Spain,  71,  78,  106,  109,  111,  117,  179, 
283,  365. 

Spanish  provinces  in  America,  revolt  of, 
106. 

Spanish  War,  the,  153,  263. 


462 


INDEX 


'  Spheres  of  influence,'  272  f . 

Spooner,  John  Coit,  American  senator, 

216,  309. 
Squier,  Ephraim  George,  American  au- 
thor and  diplomat,  211. 
Stanton,  Eklwin  McMasters,  American 

statesman,  90. 
Stein,  Prussian  statesman,  96. 
Stimson,  Henry  Lewis,  American  cabinet 

officer,  436. 
Stone,  "William  Joel,  American  senator, 

339,  342,  343,  344,  349. 
Story,  Joseph,  American  jurist,  19,  97, 

98,  316. 
Strasburg,  101. 
Stivdza,  Demetrius,  Roumanian  scholar, 

164  f. 
Submarine  warfare,  436-440,  447. 
Suez  Canal,  the,  219,  245,  265,  282  ff., 

299. 
Suez   Convention,   see   Constantinople, 

Convention  of. 
Sultan,  the,  see  Abdul-Aziz. 
Smnner,  Charles,  American  statesman, 

97,  99,  100. 
Supreme  Court,  the,  17, 18, 19, 40  f .,  369. 
Survival  of  the  fittest,  law  of  the,  156. 
Sutherland,  George,  American  senator, 

289,  290,  304,  377,  380. 
Sweden,  176,  319. 
Switzerland,  170,  176,  435. 
Sympathy,    in    international    relations, 

112. 

Taft,  President,  249,  303,  304,  313. 

Tallulah,  Louisiana,  52. 

Tampico,  299,  329-335,  431  f. 

Tehuantepec,  isthmus  of,  212,  277. 

Texas,  209. 

Thayer,  Martin  Russell,  American  jurist, 

100,  102. 
Thirty  Years'  War,  the,  402. 
Thouvenel,   £douard   Antoine,   French 

minister,  423. 
Thucydides,  remark  of,  on  property  at 

sea,  100. 
Tilsit,  Peace  of  (1807),  96. 


Tirpitz,  Alfred  von,  German  admiral  and 
minister,  382. 

Tocqueville,  Alexis  de,  French  statesman 
and  writer,  310. 

Tolima,  Colombian  state,  191. 

Tolls,  Panama  Canal,  question  of,  207- 
312. 

*  Too  proud  to  fight,'  439. 

Torres,  Colonel,  Colombian  officer,  208. 

Torture,  of  witnesses  or  of  criminals,  now 
unthinkable,  173. 

TraiU  de  droit  international,  by  Martens, 
320. 

Transportation,  cheapness  and  ease  of, 
44. 

Trave,  the,  75. 

Treaties:  of  Berlin  (1878),  111;  the  Prize 
Court  Treaty,  364, 397  f . ;  of  San  Stef- 
ano  (1878),  111;  on  the  Slave  Trade 
(1890),   65;   the  Ship  Canal  Treaty 
(1909),  175;  of  the  United  States  of 
America,  with  the  Argentine  Confeder- 
ation  (1853),  253  flf.;   with  Austria- 
Hungary  (1870),  319;  with  China  (the 
Burlingame  Treaty,  1868),  16  f.;  with 
Colombia  (1868),  268  f.;  (1870),  269; 
(Hay-Herran),  295  f.;  with  Denmark 
(1872).  319;  with  France  (1778),  15 f.; 
with  Great  Britain  (1783),  18;  (1818), 
297;    (Webster-Ashburton,    1842),   4, 
209;  (Clayton-Bulwer,  1850),  210-213, 
214-219,  222,  223,  224,  225,  244,  248, 
256,  261,  262,  264,  266  f.,  271  f.,  274  f., 
277-282, 300, 307;  (of  reciprocity,1854), 
267  f.,  294;  (May  13,  1870),  319;  (of 
Washington,   1871),  66  f.,  68,  213  f., 
269  f.,  291,  294,  406  f.;  (Hay-Paunce- 
fote,  1901),  207, 217-235, 243-312;  (of 
arbitration,  1908),  232,  300;    (1909), 
294;  with  Japan  (1854),  21  f.;  (1894), 
7-23;  with  Mexico  (Guadalupe-Hidal- 
go, 1848),  209;   with  the  Netherlands 
(1782),  16;  with  New  Granada  (1846), 
182  fif.,  185,  216,  224,  243,  262,  266; 
with  Nicaragua  (Heis),  211;   (Squier), 
211;    (1867),  268,  295;   with  Panama 
(Hay-Bunau-Varilla,  1903),  224,   225 


INDEX 


403 


ff.,  243  f.,  257,  296,  309;  with  Prussia 

(1786),  16;   with  Russia  (1832),  313- 

826;  with  Sweden  and  Norway  (1869), 

819. 
Treaty-making  power,  the,  in  the  United 

States,  11-23. 
Trerd  affair,  the,  80,  99,  422  ff. 
Trinidad,  210. 
Tripartite  Agreement,   the,  failure  of., 

175,  309. 
Tripoli,  174. 
Turkey,  46,  48,  229,  230  f.,  284,  295,  296, 

881,  439. 

United  States  of  America,  the,  66  f.,  71, 
78,  85  f.,  94,  97,  100,  126,  170,  406, 
410, 420, 422  ff . ;  and  the  Monroe  Doc- 
trine, 105-123,  165,  425  f.;  and  the 
Panama  revolt,  175-206;  obligations 
of,  as  to  Panama  tolls,  207-312;  rela- 
tions with  Russia,  313-326;  with 
Mexico,  327-335,  428-434;  the  Ship 
Purchase  Bill,  337-390;  foreign  affairs, 
1913-1916,  427-447;  relations  to  the 
European  war,  434-447;  the  question 
of  Germany,  436-447;  need  of  military 
and  naval  preparation,  434  ff.,  447;  a 
government  *  too  proud  to  fight,'  439; 
the  true  spirit  of  the  American  de- 
mocracy, 440  f . 

Vancouver,  British  G>lumbia,  299. 

Varilla,  see  Bimau-Varilla. 

Venezuela,   109,   117  f.,   119  ,176,   190; 

boundary  controversy,  263,  301  f . 
Vera  Cruz,  229,  299,  330,  335,  429,  431, 

432  f. 
Veraguas,  province,  191. 
Veritas  carissima,  102. 
Verona,  Congress  of  (1822),  106. 
Victoria,  British  Columbia,  229. 
Villa,  Francisco,   Mexican    chief,  430, 

432. 
Virginia,  18,  19,  40. 

♦ 
Walsh,  Thomas  James,  American  sena- 
tor, 338,  378  f . 


War,  continual  recurrence  of,  155;  uni- 
versally increasing  preparations  for. 
155;  avenue  to  all  that  mankind  de- 
sired, 156;  causes  of.  classified,  146  f. 

War  of  1812,  the,  75. 

Washburn,  Emory,  American  statesman, 
63. 

Washington,  state,  209. 

Washington,  George.  114,  122,  174,  291; 
Farewell  Address  of,  121. 

Watchful  Waiting,  policy  of,  483. 

Waterloo,  battle  of  (1815),  96. 

Weak  states,  protection  of,  against  the 
strong,  113,  115,  132,  401,  409. 

Webster,  Daniel,  4,  317;  on  the  Monroe 
Doctrine,  108. 

Weeks,  John  Wingate,  American  senator, 
345. 

Wdland  Canal,  the,  213. 

Weser,  the,  75. 

West  Indies,  the,  47. 

Westlake,  John,  remarks  of,  in  the  Nine- 
teenth  Century,  81  f. 

Westphalia,  Peace  of  (1648),  418. 

White,  Andrew  Dickson,  American  edu- 
cator and  diplomat,  100,  125,  126,  273. 

White,  Henry,  American  diplomat,  256 
f.,  259,  263,  264,  271. 

Wilkes,  Charles,  American  naval  officer, 
80,  422,  423. 

William  II,  German  emperor  (1888-), 
382. 

William  the  Silent,  174. 

Williams,  John  Sharp,  American  senator, 
248,  284,  285,  305  f .,  308,  345,  370. 

Williams,  William  Elza,  American  con- 
gressman, 385. 

Wilson,  President  Woodrow,  207  f .,  303 
f.,  354;  and  the  Mexican  Resolution 
(1914),  327-335;  foreign  policy  of 
(1918-1916),  427^47. 

Windward  Islands,  the,  210. 

Woolsey,  Theodore  Dwight,  American 
educator,  63,  98. 

Yorktown,  369. 

Yucaton  Bill,  the  (1848),  110. 


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